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Thursday
Oct062011

6 Motorcycle Safety Tips | Avoiding Motorcycle Accidents When it Rains

Personal InjuryMotorcycle Attorney

 

 

by Andrew L. Shapiro

(818) 907-3230

 

It’s that time of year again. As we saw yesterday, the start of winter’s rainy season is encroaching.

That means motorcycle safety becomes even more critical when you factor in decreased visibility, an increased distance needed for braking, and the added consideration that it doesn’t rain often enough for Californians to be really good at adjusting to wet road conditions. 

Many drivers still won’t factor in additional time to commute when it rains. So they’re still in a rush to get to work, the kids’ activities, schools and all of the other varied functions that regulate our lives. 

When it rains, traveling becomes riskier for those in cars and trucks, and critically dangerous for motorcycle riders. 

In light of all of this, it may be time to take a deep breath, and rehash basic motorcycle safety tips: 

1. Be Ready for Anything:  As every motorcycle rider learns when they get their first bike, anything can happen. When it rains, be prepared for additional hazards like automobile drivers who: 

▪  Forget to turn on their defrosters,

▪  Don’t maintain their wipers, or

▪  Change lanes to zip around slower moving traffic in frustration. 

Also be prepared for tsunami-like waves of water hitting you as other drivers plow through deep puddles in low-lying intersections. Helmets with face shields can help, but if you get hit with a LOT of water, the force can throw off your balance.

2. Assume Other Drivers Don’t See You (i.e., you are invisible): If automobile drivers have a hard time seeing you in dry weather, imagine how much harder it is when it rains, or when there’s fog. Also imagine how much harder it is for you to see other cars, particularly if they are grey, silver, white or don’t have lights on. 

3. Wear the Proper Gear:  Helmets are mandatory in California; sturdy boots, heavy jackets and gloves are just plain smart. 

4. Slow it down: This should be an obvious one, especially if it rains. But even if it’s not raining and you feel a need for speed, you should take your bike to a track or course where there will be less hazards. 

Manhole covers, metal road construction plates, painted surfaces – all of these things get a lot slipperier when it rains. 

5. Keep Your Head Moving: Don’t get tunnel vision when riding, especially when it rains. Always look to the sides, over your shoulders and check your mirrors. The more potential dangers you can spot ahead of time, the safer you’ll be. 

6. If You Don’t Feel Safe, Don’t Ride:  If the weather conditions cause you to be fearful or insecure, park the bike and find an alternate form of transportation until the skies clear. 

Personal Injury Motorcyle AccidentThe Insurance Institute for Highway Safety cites the federal government with these statistics: 

The number of motorcycle riders who died in 2007 was 37 times the number of car deaths, per mile traveled. In 2008, over 5,000 motorcycle accidents resulted in fatalities for the riders. That was the highest number of deaths recorded since the government began keeping track in 1975. 

Let’s not add to these figures. As a motorcycle rider, you know how dangerous driving can be. Just remember that in the rain, your risk increases. 

Andrew L. Shapiro is the Chair of the Personal Injury Practice Group at the Firm, and has ridden motorcycles for over 30 years. You can reach him 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.

 

 

Tuesday
Oct042011

Software Licenses (and Apple’s Dominance) Are Reinforced by Ninth Circuit

Business LitigationIP Business Litigation Lawyer

Nicholas Kanter
818.907.3289

 

The Ninth Circuit recently reaffirmed a company’s ability to use a license agreement to significantly restrict customers’ use of its software. 

In Apple, Inc. v. Pystar Corporation (filed September 28, 2011), Apple sued Pystar Corp., a small computer company selling its own brand of “Open Computers” running Apple’s proprietary operating system. 

Apple claimed Pystar would purchase Apple’s software, copy it onto its Open Computer, and sell the computer to purchasers who wanted to run Apple’s software, but not pay Apple computer prices. Pystar would also include an unopened copy of Apple’s software with the computer to show that it purchased the software that was copied onto its computers. 

Apple claimed Pystar infringed its copyright by copying Apple’s software onto unauthorized, non-Apple, computers in violation of the Apple license agreement, which provided: 

“The License allows you to install, use and run one (1) copy of the Apple Software on a single-Apple-labeled computer at a time. You agree not to install, use or run the Apple Software on any non-Apple labeled computer, or to enable others to do so.” 

Pystar argued Apple was misusing its copyright by requiring purchasers to run Apple’s software only on Apple-brand computers. 

The Ninth Circuit rejected Pystar’s copyright misuse argument finding a restrictive software license “represents a legitimate exercise of a copyright holder’s right to conditionally transfer works of authorship, and does not constitute copyright misuse.”  In doing so, the court affirmed the grant of summary judgment in Apple’s favor, as well as the permanent injunction that prohibited Pystar from selling Open Computers running Apple’s software. 

This ruling is significant in that it reinforces a copyright owner’s right to significantly limit a customer’s use of its software licenses. However, to show that the customer is a software licensee rather than an owner, the copyright owner should be able to demonstrate that its purported license: 

1. Specifies that the user is granted a license;

2. Significantly restricts the user’s ability to transfer the 
software; and

3. Imposes notable use restrictions. 

If the copyright owner is not able to satisfy this 3-part test, it may be determined that the user of the software owns the software, and therefore has the right to sell and resell the software without restriction. 

Therefore, copyright owners should not only consider licensing, rather than selling, their software, but also make sure that software licenses meet the above three-part test to avoid relinquishing the ability to control the use of its software. 

Nicholas Kanter is a Business Litigation Lawyer. His practice focuses on business, intellectual property and real estate matters. You can reach him 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.

 

 

Friday
Sep302011

Franchise Law Claims: Time Limits

Business Litigation Attorney EncinoFranchise Litigation Attorneyby David Gurnick
818.907.3285

Franchise laws in California and several other states seek to protect both franchisors and franchisees in their investment in a new franchise business. Franchisees are protected under these laws because franchisors must:   

▪   Register with the state each year,

▪    Present a disclosure document about the investment, and

▪    Allow a cooling-off period before the new franchisee signs any
   agreement or pays any money to the franchisor. 

These laws permit franchisees to bring a legal claim if the franchisor violates the law, such as by making a misrepresentation in offering or selling the franchise.   

For the franchisor,  the laws limit the time when franchisees can bring claims. 

A franchisee’s claim alleging violation of California’s Franchise Investment Law, is barred if not brought within the earliest to occur, of: 

▪   Four years from the act or transaction claimed to have violated the law, or

▪   One year after the franchisee discovers facts constituting the claimed violation. 

Moreover, under an old California law (from the 1800s), anyone, including a franchisee, who knows circumstances that should cause him or her to investigate, is deemed to know the facts the investigation would have revealed. This rule can make the one year time limit start and end quickly. 

Time limits differ in the various states that have franchise laws.  Here are some of them:

State

Time Limit for Franchise Law Claim

HawaiiFive years from claimed violation; or two years from discovery of facts constituting the claimed violation; but no later than seven years after the violation.
IllinoisThree years after act or transaction claimed to violate franchise law, or one year from being aware of circumstances indicating there may be a claim.
Indiana Three years after discovery of facts constituting claimed violation.
MarylandThree years after grant of the franchise.
MichiganFour years after act or transaction constituting the claimed violation.
MinnesotaThree years after action accrues.
New YorkThree years after act or transaction constituting the violation.
North DakotaFive years from date franchisee knew or reasonably should have known facts that are the basis for the claimed violation.
OregonThree years after sale of the franchise.
Rhode IslandFour years after act or transaction claimed to violate the state’s franchise law.
South DakotaOne year from claimed violation (for a rescission claim); Two years from discovery of facts constituting the claimed violation or three years from claimed violation (for a damages claim).
VirginiaFour years after claimed cause of action arose.
WashingtonTwo years from date of signing of franchise agreement.
WisconsinThree years after act or transaction constituting the claimed violation.

 

Some Effects of Franchise Law Time Limits

 

▪   Sometimes they encourage litigation.  They force franchisees to bring claims sooner, to reduce or avoid the risk of a claim being lost due to the statute of limitations. 

▪   They also give franchisors a strong tool to defend and defeat some claims, because the franchisee waited too long to sue. 

▪    These statutes also lead to some compromises and settlements, due to the complaining franchisee being uncertain if a statute of limitations may apply. 

▪   In some cases, by the time a franchisee becomes suspicious of a problem, dissatisfied enough to consult a franchise lawyer, and then certain enough to make a claim, more time has passed than the statute of limitations allows.   

▪   Sometimes, a franchisee knew the facts more than one year before bringing a claim. 

As a business owner, actual or potential franchisor or franchisee, you should keep in mind the statutes of limitations under state franchise laws.  

Franchisees should be aware to avoid losing or giving up a claim, by failing to bring it until after the time limit has passed.  Franchisors should be aware of statutes of limitations as a tool to bar or defeat an untimely claim, sometimes after only a relatively short time. 

David Gurnick is the author of Distribution Law of the United States and Franchise Depositions (Juris Publishing) and is Certified by the State Bar of California as a Specialist in Franchise and Distribution Law. Please reach him by calling 818.990.2120 or by e-mail: dgurnick@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
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.

 

 

LEWITT HACKMAN | 16633 Ventura Boulevard, Eleventh Floor, Encino, California 91436-1865 | 818.990.2120