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Tuesday
Sep272011

Social Media Issues Affecting Jury Trials

Injury Attorney Los AngelesLos Angeles Injury Lawyer 

 

by David B. Bobrosky
(818) 907-3254

 

There’s a great buzz lately over social media issues, with topics ranging from cyber bullying to privacy rights and sexual harassment. The issues even affect the justice system:

Recently a juror in Texas was kicked off a jury after he sent a “friend” request to the Defendant in the trial through Facebook.  Yes, you read that correctly.  A juror attempted to ‘friend’ the Defendant during a trial regarding a car accident.  The juror pled guilty and was sentenced to two days of community service. 

Amazingly, this is not an isolated social media ethics incident affecting the legal system.  Several stories recently have detailed how jurors are misbehaving through the use of social media.  

An article in the New York Law Journal in March (“Social Media Misbehavior by Jurors Afflicts Trial Process”)  broke down the misconduct into four general areas: 

  • Publishing information about a trial through Twitter or Facebook 
  • Researching facts or legal principles through the internet 
  • Contacting or “friending” parties, lawyers, witnesses or judges 
  • Broadcasting internal decision, such as the progress of finding a jury for a specific case, or communicating with other jurors prior to deliberations 

Another article in California Lawyer (“Jurors Gone Wild”) described data from Reuters Legal citing nearly 100 verdicts over the past decade that have been called into question because of a juror’s internet research or social media comments.  The article cites 21 cases in which judges granted new trials or overturned verdicts in the last two years. 

Getting a Handle on Ethical Issues of Social Media 

There is no easy answer to figuring out how to get a handle on the ethical issues of using social media in courtrooms.  The most drastic suggested methods have the Courts confiscating phones, laptops, iPads, and other devices upon entering the courtroom.  

Some regulators even call for the jamming of mobile networks within the courthouse.  Of course, even these drastic methods cannot prevent jurors from improperly using social media once they leave. 

Of course, these solutions only prevent jurors from engaging in these activities at the courthouse. There is nothing that can be done to truly stop jurors from being able to engage in such behavior at home. And considering the fact that we are a society that “googles” everything, this is not an easy problem to solve.

Social Media Ethics in California

California has been one of the more aggressive states in terms of trying to crack down on jurors’ improper use of social media. 

Two years ago California updated both its civil and criminal jury instructions.  The jury instructions specifically warn jurors not to post any information about the trial or their jury service on the internet in any form.  They further warn jurors not to communicate with anyone associated with the trial through e-mail, text messages, or any other media.  Lastly, they warn jurors not to use the internet to do any type of research. 

Taking the warnings a step further, Governor Jerry Brown signed a bill in August that could make willful disobedience of these warnings criminal contempt.  This means that an offending juror could serve jail time for violating these social media prohibitions.  

Hopefully, these aggressive steps will help. In the immediate future, however, attorneys and judges will be spending extra time warning jurors of the consequences of such actions.

David B. Bobrosky is a Los Angeles Injury Lawyer. Call him by dialling 818.990.2120, or reach him via e-mail: dbobrosky@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.
Thursday
Sep222011

For Whom the Claim Tolls - 5 Reasons to Consider a Tolling Agreement Before Filing a Lawsuit

 

by Stephan Mihalovits

Whenever a business or individual has been wronged by another and has suffered harm as a result, civil litigation may serve as one of several options.  But filing a lawsuit should be the result of a thoughtful, deliberative strategy. 

Before filing suit or initiating arbitration, you should consider a simple legal tool called a tolling agreement, which can help resolve disputes and avoid litigation entirely. 

Part of the pressure in filing a lawsuit is being sure to file before the applicable statute of limitations runs.  A tolling agreement is a written agreement, signed by both sides to a potential lawsuit, that suspends the statute of limitations for an agreed amount of time. 

In exchange for the plaintiff agreeing to delay filing a lawsuit until after the tolling agreement expires, the defendant agrees to waive the right to use this buffer period in calculating the claim’s expiration, per the limitations period.  With the limitations period suspended, the parties can have the time they need to negotiate and settle the dispute.  

Temporarily suspending the statute of limitations seems simple, but it can provide a number of advantages for potential plaintiffs and defendants to consider. 

If you are about to file a lawsuit, or you think you are about to be sued, you should consider proposing a tolling agreement.

Here are 5 good reasons why:

1.         Encourages Settling the Dispute. 

A tolling agreement establishes a deadline for the parties to negotiate before a plaintiff must file suit to enforce legal rights.  Typically, neither side wants to spend energy and money proving their case in court.  Thus, a tolling agreement pushes the parties towards compromising their positions and settling.  This implicit threat of litigation, should negotiations fail, puts pressure on both sides to settle the dispute.           

2.         Increases Plaintiff’s Leverage. 

Threat of eventual litigation is the elephant in the room that makes a tolling agreement effective.  An astute potential plaintiff can use this elephant as an advantage, since a potential defendant may well bend over backwards to avoid being sued. 

The plaintiff can capitalize on defendant’s anxiety by asking the defendant to cooperate in other ways.  For example, as part of the tolling agreement, plaintiff could request the defendant produce documents and/or answer questions about the dispute. 

By contrast, in a lawsuit, this “discovery phase” can be expensive, frustrating, and lengthy.  Thus, a tolling agreement can offer a way for a potential plaintiff to both save money and get more information from the defendant than he would otherwise be willing to offer.  

3.         Avoids Litigation Costs. 

Often, anticipated economic costs of civil litigation will cause a potential plaintiff to avoid acting on her rights.  Defendants are also attentive to potential litigation costs, since defendants may eventually be responsible for paying damages to plaintiff, separate from defendant’s attorney fees. 

This mutual anxiety helps push parties together and formally settle the matter.  With settlement more likely due to the tolling agreement, the parties receive the benefits of litigation (threat of potential money judgment against defendant), without actually initiating litigation and incurring costs. 

4.         Allows for More Time To Think. 

The tolling agreement must state for how long the parties wish to suspend the statute of limitations. 

Separate from other potential benefits, this buffer period provides both sides with more time to think calmly about how best to resolve the dispute.  A plaintiff has more time to consider the claim’s strengths and weaknesses.  A defendant has more time to negotiate resolution or build a defense. 

5.         Provides a Head Start on Litigation, if Necessary. 

The possibility remains that parties won’t be able to work it out, and a plaintiff may choose to file suit.  If so, the time spent in negotiations can provide a valuable, less expensive head start. 

Because of the tolling agreement, the plaintiff’s attorney should have a firm grasp on any statute of limitation issues.  Information gathered informally in negotiations need not be the subject of costly discovery requests. 

A defendant may also benefit from the process, by becoming better informed about the plaintiff’s claims and positions.  Thus, tolling agreements can help inform the parties about litigation and avoid some costs. 

So if you think you might soon be party to a lawsuit, consider buying some time with a tolling agreement. You’ll receive some of the benefits of a litigation strategy without all the costs.

 

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
Sep202011

When to Franchise Your Business - 7 Questions to Ask

Franchise Agreement LawyerState Bar Certified Specialist, Franchise & Distribution Law

 

by Tal Grinblat

818.907.3284

 

When to franchise, or not to franchise. . .that is the question many business owners routinely ask themselves.  There are certain guidelines and considerations companies can assess in deciding whether or not it’s time to franchise.  Here are some considerations:

If you’re content with the size of your business, your income, the positioning of your brand in the marketplace, the breadth of work involved in maintaining your business...then perhaps franchising is not for you. 

But if you want to grow your business and look forward to having new challenges to overcome, one very effective way to do so (with the added benefit of using other people’s money)  is through franchising. 

In deciding when to franchise, you should consider these questions:

1. Are You Profitable? Will Your Franchise be Profitable for Others?

This may seem like a no-brainer, but you’re not going to find people who want to buy into a struggling business model. And if you’re thinking franchising your business will actually turn diminishing profit margins around, it won’t.

You’ll need to take a look at why you are profitable and whether or not your income depends on fads, or solid products and services which can be turned into sustainable profits for years to come.  Franchised concepts that do not make a profit for their owners will not survive long, and may also lead to litigation.

2.  What is Your Business Model?  Will You Attract a Large Pool of Franchisees?

If entering the franchise will be too cost-prohibitive for potential licensees, you may not get many buyers. Franchising a new cleaning company for example, could be affordable to many people looking to break into business ownership. Franchising space travel launching pads would only be feasible for certain billionaires.   

3. Why Franchise Your Business? What are you offering that’s new?

You should consider your company’s unique traits that make you different and better than your competitors. If you’re not sure you have any unique traits that differentiate you from others, it may not be the right time or business to franchise.

4. Is Your Concept Replicable?

If your franchise concept is too dependent on your special qualities and traits which other franchisees may have difficulty replicating, franchising may not be for you. For example, a magician with unique skills and abilities may have difficulty franchising his magic concept if others cannot replicate these unique abilities.

5. Are You a Good Leader?

Are you prepared to offer support and training, and how much of it are you willing to provide? Many people who buy franchises are looking for guidance as they break into business ownership. But if you find it difficult to relinquish control, provide ample hand-holding for others, or are compelled to micromanage every last detail, selling franchises may not be an option for you.

6. How Will You Grow Geographically?

Imagine moving your business model from Los Angeles (or wherever your original store is headquartered) to Riverside. Will it still do well? Now try imagining it in Boise or Miami. If you think your concept will still draw customers and be profitable in many geographies, your business might make a good franchise.  However, if your concept is geographically dependent, like a windsurfing training camp, your market area for franchising may be more limited.

7.  What is the Regulatory Climate for your Business?

You should also consider specific regulations for your business. Are there certain states or geographies where your franchise will not succeed?  Will you need special permissions in local, county or state governments for your business? You’ll need to do plenty of due diligence before launching into franchise agreements.

When to franchise is always a tough question for business owners wanting to expand operations. Hopefully some of the questions above can help you start thinking about your available options.

Tal Grinblat is a California State Bar Certified Specialist in Franchise and Distribution Law. He can be reached via 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.

Thursday
Sep152011

Buy Sell Agreements – Protecting Your Interests From the Four Ds

Trusts & Estate Planning

 

by Kira S. Masteller
818.907.3244

 

Buy sell agreements are common estate planning tools for people with business partners. They ensure the continuity of the business in the event of the death, disability, retirement or withdrawal of one or more of the principles.

If you run a successful company with a business partner, you should consider executing a buy sell agreement to protect your own interests, as well as those of your family. Here are some scenarios to consider:

1. Death

▪ When a principle dies, will that person’s stock be repurchased, or can he or she leave that stock to a person of his or her choice? To assure the continuity of the business, it is usually best to repurchase the stock.

▪ Will the repurchase, if any, be done by the corporation or the other shareholders? This involves business and tax issues which will need to be discussed one on one with your attorney, since individual situations vary.

▪ A proper repurchase arrangement requires the use of life insurance, which also needs to be discussed in person to address your unique needs. For example, in a corporate redemption situation, if there is a $500,000 purchase price, the corporation will likely not have sufficient assets to pay that purchase price. Generally, life insurance is used for these purposes. (Be sure to read my previous blog, “Your Life Insurance Review” to understand why it’s important to keep your policies up to date.)

2. Disability

▪ If a principle becomes disabled, will s/he continue to receive salary and benefits? If yes, for how long? That person cannot receive salary payments indefinitely, because at some point those payments will be deemed to be dividends, which is subject to double tax.

▪ Will a disabled shareholder’s stock be repurchased? If so, we will have to discuss how the payments will be made, since life insurance will not be available for this purpose.

▪ Some of these issues can be addressed in employment agreements.

3. Departure or Retirement

▪ Will a shareholder’s stock be repurchased in the event s/he retires or withdraws? Typically, this does not happen because it places an economic drain on the corporation.

4. Divorce

▪ If your partner separates or divorces, will that put your interests in the company at risk? A buy sell agreement can protect you or your partner from unforeseen events like this.

If you co-own a business, it might be time for you to consider the future of your company and maintaining financial interests for yourself and your family. Buy sell agreements are one of the best ways to protect those interests from unforeseen events.

Kira S. Masteller is a California Trust Attorney and Shareholder in our Tax and Estate Planning Practice Group. You can reach her at 818.990.2120.

 

 
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
Sep132011

Perchloroethylene Cleanup Hangs Drycleaners Out to Dry

Litigation Los AngelesEnvironmental Litigation  

Stephen T. Holzer
818.907.3299

Drycleaners have been using perchloroethylene, a colorless liquid chemical also known as “PERC” or “PCE,” for decades. The chemical is also used in solvents, inks, shoe polish and other products, but it’s the dry-cleaning industry that accounts for 85 percent of its use.

PERC is a hazardous waste made with chlorine and other chemicals, and until modern-era environmental legislation regulating the disposal of PCE, the liquid leaked or spilled into the ground and seeped into water tables without much notice.

But federal and state-mandated clean ups are now hanging drycleaners out to dry financially, and insurance companies are also paying the price. In an attempt to find someone to pay for cleanup, some drycleaners are suing their machine manufacturers citing faulty designs and distributing use instructions that failed to warn drycleaners of potential perchloroethylene leaks and how to prevent them.

The drycleaner plaintiffs allege the machine manufacturers violated the federal Resource Conservation and Recovery Act, or RCRA, which governs all handling of hazardous waste from generation to disposal. RCRA provides for liability on the part of:

“Any person . . . including any past or present generator, past or present transporter, or past or present owner or operator of a treatment, storage, or disposal facility, who has contributed or who is contributing to the past or present handling, storage, treatment, transportation, or disposal of any solid or hazardous waste which may present an imminent and substantial endangerment to health or the environment . . . .”

The Plaintiffs in Hinds Investments v. Patricia McLaughlin relied on this language in RCRA. But last August, the Ninth Circuit Court of Appeals rejected plaintiffs’ claims, stating:

“From the language Congress chose, it seems plain that Congress was concerned with those who handle, store, treat, transport, or dispose of the waste, not with manufacturers who design machinery that might generate a waste byproduct that could be disposed of improperly at hazard to the public.”

Despite the Appellate Court’s ruling, perchloroethylene cleanup remains controversial, because plaintiffs may still try to hold dry-cleaning machine manufactures liable under other, State-law theories.

But manufacturer defendants in the dry-cleaning industry can now argue that holding such defendants liable for what their customers is too far of a judicial reach even at the State level, when it comes to perchloroethylene leaks.

Stephen T. Holzer is the Chair of our Environmental Law Practice Group.  You can reach him via e-mail: sholzer@lewitthackman.com, or by calling 818.990.2120.

 

 
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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