Trade Secrets Beat Free Speech?

That might be the case in California.

The New York Times reports on a California trade secrets case involving the cracking of a DVD code.

The ruling reversed a decision by a California appeals court. Yet the state Supreme Court's ruling is a narrow one, legal experts said, and it mostly sets the stage for further legal scrutiny of the balance between rights of free speech and intellectual property at a time when digital copies of software, music and movies can be made and distributed effortlessly over the Internet."

***
Yet Ms. Samuelson, who filed a supporting brief on behalf of Mr. Bunner, asserted that the real weakness of the suit was the trade secrets claim. Mr. Bunner, she noted, did not create the encryption-cracking program, he violated no contract with the DVD Copy Control Association, and by the time he posted the software on a Web site hundreds of others had done the same thing.

I say Mr. Samuelson has a good argument - under Indiana law.

To read more of my posts on trade secrets, click here.

If you are in Indiana and have a trade secrets problem, do give me a call.

Reading around: Franchise Broker Blogs

Some reached this blog with a search about franchise broker blogs. That inspired this post. Since I had posted about franchise brokers (see Franchise brokers), I went to Google to see what "franchise broker blogs" turned up. Here are the results.


The Bristol Group has Brokers Blog. However, the latest post is Why Buy an Existing Business from March 23, 2007.

"With so many options - startups, franchises, home-based businesses, and multi level marketing - this is a question worth considering. There are several reasons why buying an existing business or franchise resale will increase your chances for success."

AllBusiness.com has The Rewards of Being a Franchise Consultant on its Franchise Blog.

As a "fee for service" franchise consultant, as opposed to a franchise broker who sells franchises, I am equally rewarded by assisting business owners seeking to franchise a business and providing franchise due diligence services for those seriously considering the purchase of a franchise.

Franchise Blog has a post about a franchise broker becoming a franchisee in New Franchise Opportunity in Phoenix Market Promises Great Profits and a Whole Lot of Fun:

"In his business as a franchise broker for the FranNet of Phoenix, Franchise Resource Company, Kent Craven helps people find and invest in franchise businesses that fit their lifestyle."

The person writing MyBizBroker Blog is a business broker. Franchising brokering might not be a main topic here but I still suggest bookmarking or adding the RSS feed to your collection. The blog has some very good information on start ups and business in general. (So it is off the topic of the subject line, so it goes with me.) Also, it is updated fairly regularly. Tools is a good example:

Business Owner’s Toolkit TM is a comprehensive guide for small business owners to help them start, run and grow their new ventures. This guide provides 5,000 pages of detailed information about all aspects of running a business. It provides guidance for creating a business plan; obtaining financing; hiring and managing employees; product marketing; and numerous other essential topics critical to the success of a small business owner.

Another blog trending away from the subject of the title is Franchise Pundit. I do not see posts like Tools directly above, but I see a lot of relevant news and trenchant commentary (no long posts like here).

Privacy and Security Blog

A ratehr interesting blog from a big West Coast law firm. While not areas that I particularly practice in, these areas of law do have importance for all of us. I do suggest taking a look.

Can your spouse get you sued over business information?

I debated this post about a Fox News article Insider Trading: Pillow Talk Reveals Couples’ Dirty Little Secrets.After all, what readers I have do not come here for SEC matters. This paragraph changed my mind:

The second theory, “misappropriation,” applies to someone who is not a corporate insider, but rather someone who owes a fiduciary duty to the source of the material non-public information for some reason. Misappropriating confidential information for securities trading purposes, in breach of a duty owed to the source of that information, gives rise to a duty to either disclose or abstain. In plain English, the outsider (aka the misappropriator) who has no ties to the corporation can be liable for insider trading if they fail to abstain from using the information or disclose the secret to the public. It’s under this theory that courts construe a duty of trust and confidence when the communicator of the information was a spouse, sibling, parent or child of the recipient, unless the recipient can show there was no reasonable expectation of confidentiality. So, you can be on the hook and have no direct connection to the corporation.

Fiduciary duty applies to more than securities fraud. The duty applies to the personal administrators of estates, trustees of all sorts, members of a limited liability company, and directors/officers of a corporation. I have not seen an Indiana case applying a duty on a spouse, but it may be possible.

Credit repair scam article

Yesterday's Indianapolis Star republished Know signs of a credit repair scam. Please remember this:

"While you can dispute information you believe to be false, no credit repair company has the right to remove accurate, current information from a credit report. If it is correct, only the passage of time can reduce the impact of a negative report. But don't despair. The impact of that information on your credit scores is less as the years go by."

If you are in Indiana and have questions about credit repair, give me a call.

The National Federation of Independent Business

A friend who has a business in Anderson talks often about the NFIB. What is it? Here is the description from their webpage, but the particular point here is that this is an organization of and for small businesses:

"The National Federation of Independent Business is the nation's leading small-business advocacy association, with offices in Washington, D.C., and all 50 state capitals. NFIB's powerful network of grassroots activists send their views directly to state and federal lawmakers through our unique member-only ballot, thus playing a critical role in supporting America's free enterprise system."

Check out the NFIB.com Home Page.

What happens to an Indiana business in a divorce?

Keep in mind that a business is property. Indiana divorce law presumes a 50-50 split of the property.

Here is a current statement of the law from Frederick v. Frederick (NFP opinion 10-24-2007, PDF format):

C

oncerning personal goodwill and enterprise goodwill, our supreme court has held:

[B]efore including the goodwill of a self-employed business or professional practice in a marital estate, a court must determine that the goodwill is attributable to the business as opposed to the owner as an individual. If attributable to the individual, it is not a divisible asset and is properly considered only as future earning capacity that may affect the relative property division. . . . [T]o the extent a business or profession has goodwill (or has a value in excess of its net assets) it is a factual issue to what extent, if any, that goodwill is personal to the owner or employee and to what extent it is enterprise goodwill and therefore divisible property.

Yoon v. Yoon, 711 N.E.2d 1265, 1269-70 (Ind. 1999). “If a party wishes to exclude personal goodwill from a business’s valuation in a dissolution proceeding, they must submit evidence of its existence and value to the trial court by ensuring that their chosen expert provides proof of such existence and value.” Balicki, 837 N.E.2d at 538.

Which means that the court gets to decide how to divide the property unless there is a prenuptial agreement.

If want to read more about prenuptial agreements, this link will take you to all the articles I have posted on prenuptial agreements at my Indiana Divorce and Family Law Blog.

Please give me a call if you live in Indiana and are thinking about a prenuptial agreement.

For Indiana Lawyers:Local Rules Federal Rules About E-Discovery Issues

From the Electronic Discovery Law Blog, Updated List: Local Rules of United States District Courts Addressing E-Discovery Issues : Electronic Discovery Law here is the selection for Indiana:

Northern District of Indiana
Report of Parties' Planning Meeting

Southern District of Indiana
Uniform Case Management Plan (see Part III(K))
Rule 16.1 Pretrial Procedures (requiring use of Uniform Case Management Plan)

Age Discrimination

I assume anyone with fifteen or more employees knows of the federal Age Discrimination in Employment Act. If you do not, then read this article AGE DISCRIMINATION IN EMPLOYMENT ACT. Mr. Spero does a very good job of explaining the federal ADEA.

Those Indiana employers with fewer than fifteen employers may not be aware that Indiana has its own age discrimination law and protects employees between the age of forty (40) years and under the age of seventy (70) years.

If you do not know about this law, then you are probably in the mainstream. I think the Indiana law pretty toothless for employees but possessing some pitfalls for employers. Knowing just how effective this law is hard to gauge - its enforcement is hidden from the public.

IC 22-9-2-9
Hearing; publicity
Sec. 9. No publicity shall be given to any proceeding before the commissioner of labor, either by the commissioner of labor or any employee thereof, provided that the commissioner may publish the facts in the case of any complaint upon which a determination has been made.
(Formerly: Acts 1965, c.368, s.9.)

I do not think I am any different than any other lawyer in this respect: not knowing how a law is interpreted by a court or an administrative agency drives me nuts. How else do we know how to advise our clients? (As an aside, how do citizens know that the law is being enforced.)

My thinking on this statute is that it poses a problem by its very obscurity. Employers could easily comply with the law but those who do not are probably saved by their employee's ignorance of the law.

As for employees, those people most likely to be plaintiffs, the law does not provide for attorney fees. I can see the policy reasons for this omission but this statute offers little solace for employees.

Researching businesses

Need information on a company? Here are some a resource that might help, links to the Secretaries of State for all the States: Corporation and Business Entity Search Page.

Thanks to The Virtual Chase for the information.

iRobot-Robotic FX update

I wrote an earlier post on iRobot-Robotic FX and here is an update from Xconomy Blog, IRobot Counters U.S. Attorney’s Office Arguments Supporting Robotic FX. Rather long but the detail is worth the time spent. The post has a link to iRobot's Reply Brief to the United State's Response.

Whistleblower Law Blog and Medicare Fraud

Many years ago I was approached about a Medicare fraud case. The client did not wish to pursue the matter but I acquired an interest in this area of law. I suggest Whistleblower Law Blog for anyone interested in the subject.

Miami Jury Convicts Medical Company Owner of Medicare Fraud

"The Medicare Strike force has helped complete another successful qui tam case for Medicare fraud. According to Assistant Attorney General Alice S. Fisher of the Criminal Division and U.S. Attorney R. Alexander Acosta of the Southern District of Florida, Rodolfo Aenlle, owner of Direct Nursing Assistance Inc. was recently convicted by a federal jury in Miami for Medicare fraud."

The blog maintains a page just of whistleblower/qui tam news: Qui tam Legal News.

If you think you might have a government fraud case in Indiana, please contact me.

Hiring people with trade secrets

About eight months ago I posted Leaving a job with a non-compete? Got any savings for the litigation expenses? and then I published Non-Competition Agreement and Trade secrets - local news. In those posts I wrote about the dangers of hiring someone with a noncompete agreement or a non-compete agreement and possessing trade secrets.

I would generally say that if there are trade secrets then a non-competition agreement is mandatory. Then today I ran across this article from Business Insurance: Arch misappropriated Gen Re trade secrets: Judge.

Connecticut Superior Court Judge Taggart Adams on Wednesday ordered Arch not to use or divulge any Gen Re proprietary information or trade secrets, including loss cost data that the judge concluded Arch officials were using to compete with Gen Re.

***

None of the four top officials had employment contracts or noncompete agreements with Gen Re. Nevertheless, the Stamford, Conn.-based reinsurer sued Arch and the four executives variously for breach of fiduciary duties, tortious interference with business contracts and violations of a state trade secrets law.

So much for general rules? No. I still want a noncompetition agreement for these type of employees. After all, an ounce of prevention does save the client business in attorney fees. (What is better for good lawyer-client relations than keeping fees reasonable and keeping the business well-protected).

For my other posts on trade secrets just click on the link below that reads "Label: trade secrets". You can do the same for my non-compete agreements posts.

Construction companies and trade secrets

From the San Jose Business Journal Construction rivals' trade secrets dispute ordered to trial.

"Two Silicon Valley construction companies are headed back to court after an appellate ruling that reinstated a lawsuit over information an employee took with him when switching jobs."

The lawsuit alleges that San Jose Construction's employee, Richard Foust, left the company in March 2004 to work for competitor South Bay, taking with him proprietary information about five soon-to-be-started projects. South Bay then successfully bid on the five projects.

I bet most people think a welding company has no trade secrets. Consider Lincoln Electric Holdings sues for infringement of trade secrets from Penton's Welding Magazine:

Lincoln Electric Holdings Inc. (www.lincolnelectric.com)
is suing a former employee for allegedly stealing the company’s trade secrets then trying to use them to help a Chinese competitor enter the U.S. market. In a suit filed Oct. 15 in the U.S. District Court (www. www.ohnd.uscourts.gov) in Cleveland, Lincoln Electric Holdings said that a former marketing and sales employee, Roy M. Short, attempted to help Ningbo Longxing Group Co. of China to enter the U.S. market for welding products, and violated a non-compete agreement he had with Lincoln Electric. The suit says Short worked for Lincoln Electric for five years, ending in 2006, and agreed that he would not go into a business that competes with Lincoln nor solicit its employees for two years after his last day of employment. It also said that, as a representative for Lincoln’s business and supply contracts, he agreed to keep the company’s trade secrets and proprietary information confidential. Lincoln Electric alleges in its complaint that Short violated that agreement by working for CDL International Sales Inc., a unit of Ningbo Longxing that is based in Hendersonville, Tenn. The complaint says that Short planned to attend trade shows for CDL International, and used information that belongs to Lincoln Electric to contact potential customers and employees....

Yes, trade secrets apply to all kinds of businesses. The key lies in the secrets needed to make the business successful rather than the type or size of the business.

If you want to see more of my articles on trade secrets, click on the link that reads "label Trade Secrets".

Of course, feel free to contact me if you are an Indiana business concerned about your trade secrets.

Standing Up To Takedown Notices - washingtonpost.com

Having written about the Minnesota downloading case (Another view on Minnesota downloading case and Why juries make lawyers nervous), I thought the following Washington Post article an interesting view of this kind of case. Standing Up To Takedown Notices gives us a view of what happens before the lawsuit starts:

"On a chilly February day, Stephanie Lenz decided to show her family and friends what her bouncing baby boy could do. She plopped 13-month-old Holden, then learning to walk, on the floor, cranked up Prince's song 'Let's Go Crazy' and whipped out the digital camera.

In the 29-second YouTube video that resulted, Holden smiles and bobs up and down to the music. According to Universal Music Publishing Group, he also helps his mom commit a federal crime: copyright infringement."

In June, Universal, which owns the rights to Prince's song, sent a notice to YouTube requesting the video be taken down but did not take action against Lenz. On the contrary, Lenz sued Universal for abusing copyright law.
***

YouTube isn't the only hosting site on which copyright law is sometimes allegedly abused. EBay has been the setting of many of these infringement claims, too, but generally over the "first sale doctrine" -- a portion of copyright law regarding legal resale of licensed goods -- rather than fair use.

Take, for example, Karen Dudnikov and Michael Meadors. They run a mom-and-pop eBay store out of rural Colorado, 10 miles from the nearest power line. When they opened, Dudnikov began sewing pillows, potholders and other items out of fabric with licensed images of cartoon characters and other trademarked or copyrighted images. Soon they found their auctions were being taken down because of infringement allegations.

To date they've taken 15 corporate heavyweights to court -- including Disney Enterprises, Major League Baseball and M&M/Mars -- and gotten them all to back down. Facing off against these legal powerhouses, they represented themselves.

"They think we are just some country bumpkins they can push around," Meadors said. "This is our livelihood, and we stick up for ourselves."

Embroiled in their 16th lawsuit over a Betty Boop fabric, the couple has accepted outside legal help for the first time, from Public Citizen. On the fabric, the cartoon character is wearing a dress that closely resembles a design by artist and fashion designer Ert¿. SevenArts, the British company that owns the rights to Ert¿'s designs, told eBay through a U.S. associate to remove the auction for copyright violation.

Bales on Employment at Will

Indiana employment law has no more firmly entrenched doctrine than employment-at-will. The ContractsProf Blog writes about a new paper on the subject. For those wanting an idea about why employment-at-will caught on, you ought to read Bales on Employment at Will.

Does the franchise system market for customers?

Reading Achieve maximum market optimization with minimal “cannibalization” of customers through customer analytics. from the International Franchise Association raised some interesting questions. Noe of which I have any concretes for and which is why I am tossing them out here. This paragraph describes the subject of the article pretty well:

"If optimizing retail markets is so essential, one would guess that retail franchises have developed incredibly effective methods to measure the affect of one store on another when selecting retail sites. Believe it or not, this all-important issue is often left to guesswork."

The article then goes into detail about using customer analytics for determining the best site for a franchisee's operation and the details are worth reading.

My questions:

1. With customer analytics being available, should not the franchisor use this method for selecting sites?
2. Should the franchise disclosure state whether or not customer analytics were used in determining franchisee sites?
3. The article premises franchise failure on failing to market to the customer, how accurate is this premise? Does this explain the failure of otherwise good franchise systems?
4. Ought potential franchisees question more than the usual franchise system but also the systems' demographic and other marketing assumptions?
   

Licensing or Franchising?

For those thinking of franchising or licensing, Is Licensing a Viable Option Rather Than Franchising? from Rush on Business needs read.

The article discusses how Dawn and Kristen were presented an opportunity to offer a license of their recipes, Web site and logo. In these particular circumstances we were able to craft an agreement which provided them the opportunity to expand their reach beyond the single location but without all the hassles and expense of a franchise.

"So is licensing a viable option for businesses looking to expand rather than franchising in all circumstances? Absolutely not. Whether or not licensing is right for you is completely dependent upon the facts and circumstances of your own individual situation. (See Don't Let Your Distribution or Licensing Agreement Become an Inadvertent Franchise)."

If you are in Indiana, have similar ideas and need legal counsel, please give me a call.

Another view on Minnesota downloading case

I mentioned this case in Why juries make lawyers nervous.

The IP ADR Blog also wrote on this case under "B" is for Bully: Jean Valjean at the Music Store. In my earlier post, I used the case to show some of the vagaries of juries.

"A woman facing a $222,000 music-sharing verdict asked a judge Monday to overturn it.

Jurors in a case that six record companies brought against Jammie Thomas found that she violated the companies' copyrights by offering 24 songs over the Kazaa file-sharing network. They ordered Thomas, a mother of two who makes $36,000 a year, to pay the companies $222,000.

In a motion filed Monday, Thomas' attorney, Brian Toder, did not argue that she hadn't violated the copyrights. Instead, he said that because the songs could have been purchased online for about $24, the $222,000 verdict was disproportionate and amounted to punitive damages.

IPR ADR Blog summarizes some facts which some interest besides and beyond the point I made earlier. However, this post does make the point made in my earlier post:

Why the Jury Likely Made the Thomas Award So High

If you've been following this story, you don't have to do much guess work to believe the jury was likely punishing the defendant for lying to them on the witness stand. Although the defendant denied file-sharing on direct examination, documents produced at trial pretty well demonstrated that she was not telling the truth.

Small Business Trends

I found this one through The Blawg Review. I think the name says it all. If you have a small business, then check it out here: http://www.smallbiztrends.com/

Reading about mediation and ADR

Serendipity strikes. Following my post Surprised by mediation statistics, articles on mediation and ADR seem to be popping up. My original find still has me thinking about the benefits of mediation and other forms of ADR. I pass along these other finds for the reader who might be having some of the same thoughts or curiousity as I am (and these are in no particular order other than discovery):

1. Blawg Review #130
2. Blawg Review # 130 (And, no, that is not a typo or a duplication but a joint review of law blogs).
3. I Want to Settle an IP Action; What Do I Do If . . .

Trade secrets cases in the news - West Virginia

From West Virginia Record a trade secrets case makes the news, Company says fired employee stole trade secrets, other info. "

Company says fired employee stole trade secrets, other info 10/10/2007 9:00 AM By Cara Bailey -Kanawha Bureau

CHARLESTON - A Kanawha County company has filed a suit against a former employee, claiming he violated West Virginia's Computer Crime and Abuse Act after he was fired for sexually harassing a co-worker.

Attorneys J. David Fenwick and Kristin A. Boggs of Goodwin & Goodwin, filed the suit Sept. 21 in Kanawha Circuit Court on behalf of Prime Insulation Inc., which is located in South Charleston.

The suit is against Randall L. Barrett, a Putnam County resident.

According to the suit, Barrett worked at Prime from May 1, 2002 until April 9, 2006, when he was fired for sexually harassing a co-worker and insubordinate behavior toward his supervisor.

Part of his job duties involved preparing job design documents, job bid documents and other documents containing 'proprietary and commercially sensitive information and trade secrets,' the suit says.

The documents are stored on the 'S' drive on a computer at Prime's worksite at Dow Chemical Company. 'Prime undertook measures to maintain the confidentiality of such information,' the suit says. According to the suit, the information in the documents is valuable to competitors"

Does this bring your business to mind? How does it bring your business to mind - how you have protected your trade secrets or how you have not?

A successful trade secrets case requires prevention taken long before filing a lawsuit. For more information on trade secrets click the label at the end of this post to see all of what I have written on trade secrets.

If you have an Indiana company and concerns about your business's trade secrets, I am available to help you prevent problems or litigate a trade secrets case.

Employment law: Background Checks

From George’s Employment Blawg, Background Checks and the Job Search , some good advice:

Be honest, knowing that the truth is likely to come out. Many facts you would prefer a potential employer not know may not preclude your employment if properly and honestly presented. But if the same facts are discovered by the background investigator, and expose lies on your application and/or resume, you will be viewed as a liar, which is much more likely to preclude hiring.

So, one background-checking expert advises, “The absolute best thing you can do . . . is come clean in the interview process.”

As to the Internet “digital dirt,” take a good hard look at your online presence and clean up your act, if necessary. Better yet, don’t post anything anywhere online that makes you seem unprofessional or otherwise raises red flags to a reasonable employer."

The Care and Feeding of Lawyers

I wrote two posts on hiring lawyers on my Indiana Divorce and Family Law Blog, Following up on How to Hire the Right Divorce Attorney and How to Hire the Right Divorce Attorney. I think if you ignore the titles given the posts, anyone looking to hire an attorney can find some wisdom in the posts (truth-in-advertising point: the wisdom will more likely to be found in the original posts that I linked to).

A bit of a follow up, this is from For more advice on finding the Best Lawyer in the World, check out my earlier posts on the subject here and here. on the Darroll article I refer to in my "Following up on" post. This is about the best patent attorney:

For more advice on finding the Best Lawyer in the World, check out my earlier posts on the subject here and here.

Some news about ENDA

I have not written much about ENDA but here is soem news from last month Hill Panel Examines Employment Non-Discrimination Act.

Speaking of arbitration

From ContractsProf Blog: There Ought To Be a Law...:

"Arbitration is a creature of contract, and the Contracts course necessarily includes at least a few cases involving arbitration terms. But, pre-dispute arbitration could face its demise in many contexts. Senator Russ Feingold has proposed a bill called the Arbitration Fairness Act, which would invalidate pre-dispute arbitration agreements in employment, consumer and franchise contracts and 'dispute[s] arising under any statute intended to protect civil rights or to regulate contracts or transactions between parties of unequal bargaining power.

The post details the findings of the proposed legislation. This post ends with these two paragraphs:

And, on the heals of this proposal, comes a 74-page report, titled "The Arbitration Trap," by a group called Public Citizen. The report exposes the troubling relationship between certain arbitration providers and the credit card industry, and concludes that pre-dispute arbitration is "a rigged game in which justice is dealt from a deck stacked against consumers."

Nevertheless, the near consensus of predictors is that the bill has no chance of passing (or even getting to the floors of the House or Senate). And, despite numerous academic writings that support these findings and the elimination of pre-dispute arbitration agreements in these contexts, there has been very little popular press coverage of the subject. The most mainstream press I have seen yet is this op-ed piece from Forbes, which, in light of credit card industry practices, encourages the passage of the Arbitration Fairness Act.

Compare this with the earlier post on arbitration, Surprised by mediation statistics.

Employee handbooks - a good overview

From the Matthies Law P.C. website Some good reasons why your Company should create its own Employee Handbook.

Employment discrimination - good article

The McDonnell-Douglas case has great importance in federal anti-discrimination law. For those employing fourteen or more employees or working for an employer with more than fourteen employees, you need to know about this case.

Kennedy Information Recruiting Trends published George Lenard's What Does Climbing the St. Louis Arch have to do with Proving Discrimination? The article lays out the case's importance here:

Eight long years passed. Finally, in 1973, the Supreme Court decided Green’s case. The decision, McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), became such a judicial landmark that even today courts cite it hundreds of times a year for its announcement of the following three-step analysis: 1. The court first looks at whether the person claiming discrimination has made a prima facie case. If not, the case is subject to dismissal without the employer presenting any evidence of its own. According to the McDonnell Douglas decision, a prima facie case of racial discrimination in hiring requires proof that the person:

1. The court first looks at whether the person claiming discrimination has made a prima facie case. If not, the case is subject to dismissal without the employer presenting any evidence of its own. According to the McDonnell Douglas decision, a prima facie case of racial discrimination in hiring requires proof that the person:
   1. belongs to a racial minority;
   2. applied and was qualified for an open position, and was rejected.
2. If it finds a prima facie case, the court then proceeds to the second part of the analysis, in which it looks at whether the employer stated a legitimate, nondiscriminatory reason for the rejection.
3. Finally, if the employer stated such a reason, the court determines whether there is evidence it was not the true reason, but instead was a pretext to cover up discrimination.

I suggest reading the full article. It does a great job of explaining the case and how it applies to employment law.

Also, George Lenard has for many year published George's Employment Law Blog. I consider it a very good blog for employment law issues and news.

Seminar on Indiana's Open Door Law

Indiana Coalition for Open Government

"Set aside November 8 for a very special day of training for journalists and citizens on access issues, hosted jointly by ICOG, the Indiana State Bar Association, and the Hoosier State Press Association. USA TODAY Editor Ken Paulson is the keynote speaker. Check out our other speakers and plan to join us in downtown Indianapolis for another great training event."

For more information: Access Boot Camp – Register Now!

Surprised by mediation statistics

I was surprised by the post More Statistics on the Differences between Arbitration and Litigation Procedures, Cost, Duration and Outcome on the Southern California Arbitration Mediation and Conflict Resolution Blog. For example:

Time and Cost Differences Between Arbitration and Litigation *

Employment claims take 650 to 720 days to be resolved in court, according to the National Center for State Courts. * The median time to resolve an employee dispute by arbitration is 104 days * the median cost of resolving employment disputes by arbitration is $870.

Sources: Consumer and Employment Arbitration in California: A Review of Website Data Posted Pursuant to Section 1281.96 of the Code of Civil Procedure California Dispute Resolution Institute, August 2004 http://www.mediate.com/cdri/cdri_print_Aug_6.pdf and Examining the Work of State Courts, (1999-2000) National Center for State Courts http://www.ncsconline.org/D_Research/csp/1999-2000_Files/1999-2000_Tort-Contract_Section.pdf

Outcome Differences Between Arbitration and Litigation: Arbitration & litigation final awards are essentially the same as court judgments * median monetary awards for successful claimants are greater in arbitration than in court—$100,000 in arbitration compared with $95,554 in court."

I suggest reading the full article. I have my doubts about arbitration but that doubt comes mostly from choice of law provisions where arbitration is to take place in a state far from Indiana. I am certain that works to the advantage of one of the parties -usually the one that is without the means to travel to the other state or hire out-of-state lawyers.

A few points that seem to escape the polling and studies, ADR does permit privacy to the parties denied by filing a lawsuit. I count that as an advantage for the business client.

From my experience in Indiana, there are two sources for delay:

• First, most Indiana courts have criminal jurisdiction. Criminal cases take priority over any civil case (there is the constitutional right to a speedy trial). Civil trials get bumped from the court's calendar to make way for a criminal trial.
• Second, there is the discovery phase of trial. I am sure discovery increases the cost of civil litigation. We lawyers like knowing everything we can about the opposition before trial begins - so we get documents, we do depositions, and we read and review all the information. Sometimes this phase becomes a sword rather than a shield as parties push depositions (which cost money due to paying court reporters) and dump documents in massive quantities. The movies A Civil Action and Class Action do a good job of showing this aspect of lawyering.

I admit that I am inclined to distrust perfect answers. I continue to see ADR as a tool for my clients but I will have doubts that it will solve all their problems.

Why people need powers of attorney

Wills, Trusts & Estates Law Prof has a post about a subject I have been kicking up for several years now. Read these facts from Temporary Guardianship Awarded to an Injured Marine’s Mother:

John’s father, and Debra Graziano’s estranged husband, Edward Graziano, unsuccessfully tried to appoint an independent guardian for his son. Edward Graziano’s recently retained attorney, Steven Hearn, was granted a continuance to have more time to prepare his case. During that time Hearn plans to investigate Edward Graziano’s concerns that his estranged wife is receiving financial support from the Bollea family. It is not clear whether John Graziano has a will and power of attorney, as is typical for the service members who are deployed overseas.

I had something like happen a few years ago. No power of attorney for an incapacitated spouse, so we filed for guardianship. The client paid about six times what would have been the cost for a power of attorney. The cost might have gone higher as the children from a prior marriage wanted to fight the guardianship but the spouse died.

Who might not wind up in the hospital and unable to take care of their business? Anyone and everyone is the answer. A power of attorney kicks in when you cannot take care of your business and lets another person take care of your business so long as you are incapacitated.

A health care power attorney operates the same way but is limited to medical decisions and care.

I now recommend that anyone making a Will also have a power of attorney, a health care of power of attorney, and a Living Will. I can put together a package of these documents for far, far less than the cost of a guardianship for anyone living in Indiana.

Making a Will is not required but I also do a package of power of attorney, a health care of power of attorney, and a Living Will.

Another Copyright Blog

I came across Pierce Law IP News Blog today. The blog describes itself as "A blog devoted to news on IP, Commerce and Technology." Most of the posts I have seen concentrate on copyright rather than trademark or patents. While not updated very frequently, I have got to say the writer does a great job getting across how copyright applies to businesses (mostly music or film).

Franchise brokers

I have no experience with franchise brokers. As Should You Use Franchise Brokers? from Entrepreneur.com - MSNBC.com points out, these are a fairly recent development. The following is a good summary of the pitfalls but I suggest franchisors and franchisees read the full article.

While the idea of finding an 'ideal match' for prospective buyers again sounds good in principle, individual brokers are often motivated by factors outside the buyer's best interests. Franchisors may pay different levels of fees, providing one clear-cut motivation. Some franchisors offer broker spiffs--ranging from bonuses to free trips to Hawaii. And of course, the broker doesn't get paid unless the franchisor closes the deal, so proven closers always rank high on the broker's short list when it comes time to make recommendations. Again, it's important to emphasize that many brokers do have a genuine concern for their franchise buyer 'clients.' But even the most altruistic broker will, at a minimum, be subjected to the kinds of outside factors discussed above.

If you are dealing with a franchise broker, I suggest reading this article and consulting a lawyer.

Copyrights e-mail updates

I had had thoughts twenty years ago of doing copyright work. Not got a bit of work in all the years of practicing but I still try to maintain some connection to this kind of work.

Now the Copyright Office provides an e-mail update for information on developments in the area. You can subscribe here, if you have an interest.

If you do not want periodic updates, here is the site for the Copyright Office.

Employee blogging - problems

Terrible title for this post but bear with me.

I am reading Kevin O'Keefe's Real Lawyers Have Blogs when I reach the post How to stop a disgruntled ex-employee blogger. Kevin O'Keefe comments on a post, How do you stop a disgruntled employee blogger?, from Itbusiness.ca. Frankly, I found Kevin's comment a bit more important than the points of the earlier article.

One thing Vawn doesn't mention is the necessity of an effective Internet presence. An effective corporate Internet presence is not a Web site or press releases issued across the net. It means having a trusted and reliable voice or, better yet, multiple voices on the blogosphere. An effective Internet presence requires corporate employees to be blogging.

Without an Internet presence, I am not sure that a disgruntled employee's badmouthing of the company will mean much. I may be a bit more sensitive about this as I continue to blog about legal issues. I will admit that my marketing of this blog is probably cack-handed at best but I draw very little attention from my local area or even Indiana. Yet, I am online and I do keep an eye out on what, if anything, is said about me out here on the Net. I still skeptical how much the Internet has penetrated some parts of this country (like, say, Indiana).

I am also interested because I see the possibility of problems that fall under the more standard headings of trade secrets and non-disclosure. Without proper preventive measures in place, the business may face more than mere bad publicity. One may be looking at losing one's business.

I think tow types of businesses need to read these posts:

1. Those without an Internet presence; and
2. Those with an Internet presence.
   

The first group needs to decide on an employee policy which takes into account the Internet. Yes, talk to your lawyer about this. The second group needs to consider wheth