So it is Called The Curse of Expertise

No, nothing that follows really has to do with Indiana law or businesses, but then it has everything to do with the law and life. I caught the following paragraph from Out of the Mouths of Children published by the Adam Smith, Esq. Blog:

The "curse of expertise" can condemn us to recite what we're comfortable with, to feel altogether too smug about our familiarity with the landscape, and to unconsciously disarm our mental defenses against cant, or worse--to arm to the hilt our mental defenses against unconventional thinking. It can also lead to thinking and behaving only for the benefit of those presumably already initiated into the particular inner circle of expertise....

While researching some statutes about the beginning of November I realized that I was mistaken in my memory of one particular statute. Yeah, what you think you know can hurt you. Well, actually, embarrass one's self. Which lead me to changing how I selected articles for my Indiana Divorce & Family Law Blog and soon for this blog.

Rex Stout put into Nero Wolfe's mouth something along the lines that inertia is the strongest force in the world. We all dig our own professional ruts. I can say as of now that blogging has probably made me take a harder look at my conventional wisdom. I suggest any of my peers reading this take a look at the blogroll - the list of links - get out and about on the Internet. Things are happening out there. Ideas have no great boundaries of space and time. I will agree with Mr. Friedman's flat earth theory to that extent. More importantly, no longer can any class claim a toll on access to those ideas. At the same, distinguishing between information and knowledge is something the general public must learn and that there is value in knowledge. Let me make a facile analogy, just because I know what a rotor cap is does not mean I can rebuild an automobile engine.

Meanwhile, best wishes for the new year.

Slightly Old News About Vonage

Since I wrote about Vonage here, I thought I ought to point out Vonage, AT&T Settle Patent Dispute - News and Analysis by PC Magazine.

"Digital phone service Vonage said on Friday it has settled a patent dispute with AT&T."

***

Vonage did not disclose the nature of the settlement, which it said occurred on November 7. The settlement was finalized on Friday.

May the New Year Be a Good One

Auld Lang Syne

Following Up on "Indiana Business Resource: The Indiana Occupational Safety and Health Administration (IOSHA)"

I got the following e-mail today from IOSHA in response to my post Indiana Business Resource: The Indiana Occupational Safety and Health Administration (IOSHA):
>

From time to time, your blogs about IOSHA and other IDOL divisions come to my attention. Thank you for your recent mention of our VPP program. We have 44 companies in Indiana (which may actually be up to 47 before another week is out), that are certified as VPP sites, and we use them as mentors, special employees to assist our department in reviewing new applicants for VPP, and simply as great news for the private sector and Indiana’s workers. We also have a program called INSharp, that helps companies become safer as well, but we offer more resources to the companies (and municipalities) than what is available with the Voluntary Protection Program. You are right that this is not the IOSHA of the past.

Finally, on Friday, we launched a new website that is more visually appealing, easier to use and will be the beginning of a more customer friendly and useful Department of Labor. You can access it at www.in.gov/labor. I invite you to take a look at it, and feel free to contact us at any time if we can offer you any assistance or information for your readers.

And, yes, the website looks better and appears easier to use.

Indiana Business Resource: The Indiana Occupational Safety and Health Administration (IOSHA)

I know many businesses hate the sound of OSHA. Too often these same businesses have no idea that of the following Indiana program:

The Indiana Voluntary Protection Programs (VPP) are also housed within IOSHA. VPP promotes effective worksite-based safety and health. In the VPP, management, labor, and IOSHA establish cooperative relationships at workplaces that have implemented a comprehensive safety and health management system. Approval into VPP is OSHA's official recognition of the outstanding efforts of employers and employees who have achieved exemplary occupational safety and health programs. A VPP Manager is responsible for the operation of the VPP in Indiana.

For more information on IOSHA, take a look at this page here. Y0u will find information on the other division of IOSHA: the Industrial Compliance Division, the Construction Safety Division, and IOSHA's Whistleblower Protection Unit.

Late Night Thoughts on How to Use this Blog

My readership - what there is - appears to be solely lay people. I try to write as much for the general public as I can. However, that does not mean I throw away all my training as a lawyer. How you phrase things in your Google searches may not be how they are written here. So here is a grab bag of observations and tips on using this blog:

1. I do not have specific answers to your questions. I see these very specific Google queries and I wonder if you find anything. I see some missing information because they do not want to look in depth.
   
2. Google is not a natural language search engine. Learn the proper way to put in search terms. Sorry, but research is part of my professional life. I cringe when I see it done so badly and when doing it correctly is so easy.
3. Use the topical/subject archive. It is just down the right hand of your screen. There are also links below every post next to the word "Labels". If for nothing else because I went to a lot of work to do this for you. Less selfishly, I see plenty of you missing articles that would probably have answered your question - if you had looked just a bit more.
4. From what I see of the searches bringing people to this blog, most people are not looking for information as much as the answer to their specific question. If that is still your attitude after reading 1 - 3, then get yourself to a lawyer. Odds are you will be needing one.
5. If you want to keep with this blog, then use the e-mail subscription service or the RSS feed service.
6. Why would you want to keep up with this blog? Because it changes at most daily and at least every other day. You can keep up with the legal information you need.
7. Use the online search feature - upper left hand corner - just to make sure that you are not missing something.
   

Music Download News - New Tactic from Recording Industry

Since I have written before (here and here and here) about the lawsuits against music downloading, the Washington Post article, Download Uproar: Record Industry Goes After Personal Use, caught my eye.

"Now, in an unusual case in which an Arizona recipient of an RIAA letter has fought back in court rather than write a check to avoid hefty legal fees, the industry is taking its argument against music sharing one step further: In legal documents in its federal case against Jeffrey Howell, a Scottsdale, Ariz., man who kept a collection of about 2,000 music recordings on his personal computer, the industry maintains that it is illegal for someone who has legally purchased a CD to transfer that music into his computer."

I read about the RIAA's theory elsewhere. Distilled to a bare minimum, I do not own my music CD but only use it under a license from the record company.

The industry's lawyer in the case, Ira Schwartz, argues in a brief filed earlier this month that the MP3 files Howell made on his computer from legally bought CDs are "unauthorized copies" of copyrighted recordings.

"I couldn't believe it when I read that," says Ray Beckerman, a New York lawyer who represents six clients who have been sued by the RIAA. "The basic principle in the law is that you have to distribute actual physical copies to be guilty of violating copyright. But recently, the industry has been going around saying that even a personal copy on your computer is a violation."

Yeah, a lot of people can believe this argument - lawyers and laypersons alike.

I cannot but heartily agree with this:

The RIAA's legal crusade against its customers is a classic example of an old media company clinging to a business model that has collapsed. Four years of a failed strategy has only "created a whole market of people who specifically look to buy independent goods so as not to deal with the big record companies," Beckerman says. "Every problem they're trying to solve is worse now than when they started."

I suppose working at the rarefied levels of my profession as the RIAA's attorneys do, they give no thought to the ultimate wisdom of their legal theories. I have a duty to act in my client's best interests and so do these guys. Yet, this litigation does nothing to advance anything for their clients - other than the RIAA as a bunch of greedy thugs.

Construction Law and Trucking Litigation

For those lawyers and businesses dealing with the construction industry, check out Construction Risk Management Portal and Library.

I ran across Truck Injury Lawyer Blog through the Inter Alia blog. I would say this is blog is directed more to lawyers but if you are interested in the subject you need to give it a look.

Indiana Alcoholic Beverage Licensing

Indiana's Alcohol Beverage & Tobacco Commission has some online resources that I want to highlight. First, the Licensing page - which is a collection of links to further information on the different types of licenses issued by the Commission.

As of today, the following contains all of the Commission's alcohol FAQ's (Frequently Asked Questions):

ALCOHOL FAQs

• How much does a permit cost?
• How can I stop an alcoholic beverage permit from being put into use in my neighborhood?
• Can I open my new business before my permit is issued, and while the application is pending?
• How do I learn the Alcoholic Beverage laws and regulations?
• What are the legal hours for dispensing alcoholic beverages?
• Is it illegal to dispense alcoholic beverages on certain days?
• What qualifies a beverage as "alcoholic?"
• Is it illegal to furnish alcoholic beverages to an intoxicated person?
• Are premises with an alcoholic beverage license required to serve food?
• How old do you have to be to serve alcoholic beverages?
• How old do you have to be to work at a permit premises?
• Are Server Training Programs mandatory?
• What is the penalty for serving alcoholic beverages to minors?
• What are some reasons a new permit may not be approved by a Local Board and the Commission?
• What are some reasons a renewal application may not be approved by a Local Board and the Commission?
• What are the penalities for impaired driving in Indiana?
• What excise district am I in?

James Bond and Copyright

Got your attention? What could James Bond have to do with copyright? Actually, a bit of an interesting story. Which the London Times brought back to light in The battle for the soul of Thunderball.

For the Bond fans out there - especially those who read the books - they may know that Thunderball had a question of paternity. I remember reading the outline of the story when Connery came back to do Never Say Never. The excerpt from The Battle for Bond published by The Times covers that part as well as the plagiarism trial.

Other than learning that Thunderball was the most successful of the early Connery films (I thought Goldfinger would cop that honor) and Richard Burton was slated to be the first film Bond (no, no, no), I found a great description of the triumvirate of civil litiation. What makes up this triumvirate of civil litigation? People, money, and law.

On November 20, 1963, the Thunderball trial began in earnest. Could McClory prove that his copyright in the Thunderball story had been infringed by Fleming’s novel? Much was riding on the outcome, because, with the release of Dr No and From Russia with Love, starring Sean Connery, Bond was now a cinematic success. There was a lot of money, and some hefty reputations, at stake.

One must not underestimate the personal enmity between Fleming and McClory, clearly shown for the first time in the letters. Neither liked the other during the time they worked together, and they clashed frequently. In one correspondence, Fleming admitted: “I don’t particularly like Kevin personally, because I have never particularly liked Irish blarney.” The letters also reveal that Fleming was plotting behind McClory’s back to remove him from the Bond project. As for McClory, he labelled Fleming “cynical” and “a snob”. One suspects that half of McClory’s motive for his court battle was to put one over on the English Establishment, epitomised by Fleming.

The following paragraphs reminded me of a case I settled a few years back for similar reasons - a question of the client's health being able to endure an extended trial.

All the more strange, then, was what happened on the trial’s ninth day. McClory had just taken the stand when the hearing was unexpectedly and dramatically adjourned: Fleming had decided to settle. But why?

As Fleming had already suffered one serious heart attack, Bryce was worried about the effect the trial was having on his friend. What has not previously been revealed is that Fleming experienced two heart attacks during the case itself. So, after days of wrestling with his conscience, Bryce persuaded his friend to settle, rather than watch him endure the days to come. Fleming’s wife, Ann, was incensed, scrawling in her husband’s copy of Diamonds Are Forever, which had a dedication to Bryce, the words: “The man who betrayed Ian in the Thunderball case.” Fleming, too, was later to bitterly denounce Bryce’s actions. Yet, as Bryce was bank-rolling the defence, the decision was his to make.

Mortgage Foreclosure Case for the Guiness Book of World Records

Read Determined Homeowner Staves Off Foreclosure for 11 Years. I am amazed. That beats my personal best by about nine years. I will only say that I do not think this will be easily duplicated.

Business blog round up: Blogs for Small Business

Thanks to IowaBiz.com for this collection. I must admit that I found the following links from IowaBiz.com. Here is a good rule for searching online: if the site is good, then the site it links to ought to be just as good. IowaBiz.com is good and so are the sites it links to.

I notice that Rush Nigut of Rush On Business is a contributor to the IowaBiz, and I think highly of his blog. Lots of good stuff on IowaBiZ and the following blogs, too much to easily or even properly summarize. Check these sites out if you have a small business. From what I see, these can be very useful to any small business owner.

Small Business Tips seems to be more about online marketing and branding tips. The Internet is not just the future but also the present, check it out folks.


Business Pundit - I swear I wish I had this cheeky style instead the pedantic tone I hear. Just warning you that I find it interesting to read because it combines good information with a good writing style.


Small Biz Survival which describes itself as "By and for small business people in rural areas and small towns".

Small Business CEO:

Social Networking for Business
Are you looking to dive-in to the social networking world for your business but you want to find a service that is ALL business?

Then you should check out Fastpitch. I have been a member for awhile now and am continually impressed with the continuous stream of new features, functions and services they are bringing to members.

Small Business Branding:

By the end of THIS week, identify the one thing you could do that would have the most significant long-term impact on your business in 2008. Is it finally defining and knowing your brand? Is it creating a customer retention program? It is launching a new initiative? Whatever it is — commit to getting it done.

• Write a very simple outline of what steps needs to get done
• Create a calendar that corresponds to your outline
• Be accountable. Tell your team your boss, your customers…whoever you know will hold you accountable to getting it done.

Then, roll up your sleeves and get to work.

Do not ignore this one. You’ll be amazed at how good you feel once you get this major goal accomplished!

Business Daily News is pretty much what it says and covers a bit of territory that is not strictly business. However, it is a good looking WordPress site and pretty well written.

AARP Advocating Change to Indiana's Age Discrimination Statute?

Over the Christmas break, I read an AARP publication that had a brief article on how Indiana's AARP would be advocating changes in Indiana's Age Discrimination Act. I wrote about that law here. I was not able to find anything about this on AARP's web page for Indiana, and so I will rely upon my memory. I recall that the proposals include moving enforcement from the Indiana Department of Labor to the Indiana Civil Rights Commission, and generally giving the law and its enforcement more teeth. Something to keep an eye out for during the short session that starts next month.

Mechanic's Liens and Permits: A New Court of Appeals Case

An Evansville area contractor lost its lien and its appeal by not getting the building permit in the proper way. Hopper Resources Inc., Construction Div. v. Wendell Webster (PDF format) decided yesterday turned on the way that the contractor obtained the building permit:

On November 25, 2003, Shamo went to the Building Commission office and obtained an Improvement Location Permit for the addition of a bathroom and a porch to Webster’s residence. Shamo completed a “Homeowner Affidavit” stating that “Wendel [sic] Webster” thereby swore that “either [he] or a member of [his] immediate family” would “perform the . . . work” of adding the room and porch at his residence, “for which Building Permit #106771E” was being issued, and that he would not be “subcontracting out any of the work” thereon. (Ex. A). Shamo signed Webster’s name on the affidavit....

Contractor filed suit to foreclose the lien. Contractor lost at the trial court level and appealed. The Indiana Court of Appeals noted that foreclosure is an equitable action and listed several equity maxims: One who seeks equity must do equity, One who comes into equity must come with clean hands, and equity follows the law ( see page 7 of the opinion).

But losing the foreclosure was not all that the contractor lost - the contractor also lost on the breach of contract claim. The Court of Appeals sank the breach of contract claim in this paragraph:

Next, Hopper argues that it “was entitled to recover on breach of contract,” citing “unrefuted evidence” that it “was owed and ha[d] incurred damages” in the amount of $7,500.00 “as a result of Webster breaching the parties’ contract by running Hopper off the job and refusing to pay.” Hopper’s Br. at 29, 30. The evidence was that Webster refused to allow further work by Webster after the inspector found that the work failed to comply with Code. The Homeowner Affidavit expressly provides that “if the Inspector should find the work in the violation of the Code, then [the homeowner] shall employ a master installer of the required trade or craft to change, alter, or repair the work that is in violation.” (Ex. A). Hopper offered no evidence to establish that it held such credentials...Absent a showing that Hopper held credentials to perform the corrective work required by the Homeowner Affidavit, the circumstances here did not require that Webster allow Hopper workers to perform further work. Therefore, Hopper’s breach of contract claims must fail.

Reading the case, I was surprised that the homeowner did not file a counterclaim based on Indiana's home improvement fraud statute. The homeowner filed a counterclaim and asserted an affirmative defense of fraud, but the counterclaim was struck by the trial court. The Home improvement statute says the following about permits:

IC 24-5-11-9
License or permit as prerequisite
Sec. 9. Where a license or permit is necessary for any part of a home improvement, the home improvement contract shall be subject to obtaining the necessary licenses or permits prior to any work commencing.

Considering how the contractor obtained the permit in this case and the type of permit, I think the contractor got lucky in escaping a home improvement fraud suit.

Another Resource for Indiana Businesses

The State of Indiana has a Business Owner's Guide as a web page.

The tech savvy will call this a portal page. It has links to other pages with pertinent information. A very good place for new Indiana businesses, old Indiana businesses and business wanting to know about Indiana.

Updating "I like Kitchen Nightmares"

I saw No LA Kitchen Nightmares for Gordon Ramsay in the Telegraph (UK) and I remembered that I had not followed up on my article, I like Kitchen Nightmares. I want to make something clear that I think the earlier article muddled: I wrote about the Kitchen Nightmares on BBC America. I had not seen the American version till after I wrote my article. I have seen one episode of the American version and it angered me. My first reaction was in language Mr. Ramsay would know: it is crap. The hyped up, confrontational style has everything I hate about "reality" television. Which makes me think someone thought that Americans were too dim to follow the English format. That thought angers me deeply.

Restaurants are a business. Some restaurants become big businesses (take a look at the Telegraph article to get a taste of the money involved or go look at the closest McDonald's store). Most everyone thinks they can run one. If you think you can, take in as much of the BBC Kitchen Nightmares as possible.

Business Divorces

What can be the most difficult thing about running a business? Ending it.

The Iowa Law Blog has a brilliant post on the subject: How to Avoid the Business Divorce.

I say brilliant because I say about the same thing to all potential business start ups:

Every business partnership (whether in a corporation, LLC or true partnership) should consider a buy-sell agreement from the outset. As Central Iowa financial planner Art Dinkin says, Begin with the End in Mind.

A buy-sell generally covers how an owner can sell shares and how to value those shares. Further, a good buy-sell agreement sets forth what happens in the event of death, disability, retirement, divorce, bankruptcy or other considerations.

Effective buy-sell agreements will generally require a right of first refusal. This means if one owner finds an outside buyer for his shares the owner must first offer those shares to the other existing owners. This protects the owners from suddenly running the business with someone they did not intend to have as a partner.

I especially look at the buy-sell agreements for limited liability companies. I had a bad experience in trying to get a client out of one (he did) and I am twice shy when once bitten.

Indiana's Economic Development Corporation's regulatory ombudsman

I really think those who think Indiana is not business friendly are not aware of the resources available to businesses in Indiana and those who want to come here. The IEDC's ombudsman program is an example for help in Permit and Regulatory Assistance.

The Indiana Economic Development Corporation's regulatory ombudsman assists in the process of obtaining the permits and approvals necessary for a business operation. The ombudsman serves as a liaison between companies, communities, local economic development organizations and regulatory agencies.

The ombudsman assists both current and potential Indiana businesses with a variety of topics, including agency contacts and communication facilitation; license and permit requirements and applications; permit tracking; and regulatory compliance.

Also check out the links here.

A Bit of News and Merry Christmas

There should be no new articles posted till December 26. Yes, I will be taking a break.

For my subscribers - have a Merry Christmas! Or whatever holiday you are celebrating at this time of the year. Be good to your children, your significant others, and friends.

For those wandering in here for the first, a words of advice. If you do not see what looks to be on point, take a look at the subjects on the right hand of your screen. Your Google search may been too narrow. Anyway, feel free to browse and look around at your leisure.

Indiana Trademarks

Yes, trademarks belong to the Federal government but the states also have a trademark system. Federal law limits the state trademark's validity only to the state issuing the trademark. So why file with a state? Because it is there, a sort of completeness along the lines of wearing a belt with suspenders.

Indiana's Secretary of State runs Indiana's trademark registry. The SOS also provides a web page of trademark information:

• Trademark Legislation effective July 1, 2006 NEW!
• Trademark Search
• Download Bulk Trademark Data
• Information about Trademarks

• Trademark Application

• Trademark Renewal Application

• Assignment of Trademark/Service Mark

• Contact: Trademark Deputy - (317) 232-6540

Franchising - Leveraging The Audit

Franchisors, take a look at Success in ensuring and building your brand can be achieved through the compliance/quality audit process. from Franchise World:

Wrong. This is your brand being discussed. Compliance is part of the DNA of any brand. It is critical that the audit process reinforces and grows the brand. Don’t take some audit that was used five years ago and apply it to the concept today. Do it right. Start by deciding which behaviors and characteristics are important to the business. Then design the audit form to measure them. Sure, they will include such standards as quality, service and cleanliness. They will also include indicators of how well employees are being managed and how healthy the culture is. They should include indicators such as business management and customer satisfaction.

Link the audit directly to key indicators of success: profitability, employees, customers, operations broken down into the measurable elements such as revenue and operating efficiency, employee attraction, retention, and training, customer attraction and retention, procedural compliance, waste management, and inventory management. Does the brand know what its customers care about? Too often organizations will place emphasis on things that really don’t matter to the organization.

The best quality or compliance audits are designed not only to ensure adherence to the model, but also to drive and inform improvement and growth. Establishing clear goals and results for the audit is an obvious first step, correct? If one asks most franchise systems, the goal is to make sure franchisees are following the model. Following the model is part of it, but the real goals should be improvement and growth. By tweaking the focus of the audit, the brand can use it to identify problems or shortcomings in the model and opportunities to improve the model.

It does make sense, so take a look at the whole article.

Franchisees - what does it say of your franchisor who does not conduct these kind of audits?

A Fair Credit Reporting Act FAQ

I wish I could say I created this but I did not. Idenity Theft Secrets published An Overview of The Fair Credit Reporting Act: What it Does and How it Can Help You. I would say it was a good enough FAQ to start learning about The Fair Credit Reporting Act.

Fallout from The Subprime Mortgage Crisis

The subrpime mortgage mess has economic and political reprucussions but the legal ones are also showing up. Two different articles from two different sources give us some idea of how the legal system will be dealing with this problem.

From The New York Time comes this story out of Florida: 31 Accused in Florida of Falsifying Home Loans:

"Officials said the scheme included participants at every stage of the transactions, including bank employees, title agents, appraisers and fake buyers, and involved property in Miami-Dade and Broward Counties and in the city of Marco Island on the state’s southwest coast."

According to the indictment, Juan Torrens, 40, a defendant and the owner of two real estate investment companies, would identify property owners who were willing to overstate the selling price of their properties.

Mr. Torrens and another defendant, Daniel Ramos, 40, would recruit people to pose as buyers, the indictment said. Mr. Torrens and his wife, Rachael, would then prepare fraudulent mortgage loan applications on behalf of the straw buyers, including false pay stubs and tax forms, according to the indictment.

Meanwhile, to support the inflated sales prices, Alonso A. Muxo, 48, an appraiser, would prepare fraudulent appraisals, the indictment said.

In at least one case, the indictment says, Roger Rosario, an employee of Regions Bank, provided a fraudulent verification of deposit in connection with a mortgage loan application.

The defendants would skim off the difference between the sale price and the mortgage loan and pay off all the participants in the scheme, officials said.

Lawyers.com published Economy's Frowns Turned Upside Down for Boutiques:

"Coming off a four- or five-year dry spell, small bankruptcy boutiques like McNutt's are watching the ripple effect of the subprime mortgage meltdown and the ensuing credit crunch. They say the ailing run the gamut, from hospitals to retail and high-tech businesses.

McNutt said the firm is getting three times more calls than last year about Chapter 11 from distressed midsize companies -- those with between $5 million and $15 million in annual revenue. Recently, the firm also was tapped to represent the creditors' committee in the SonicBlue bankruptcy and in a case regarding Selix, a troubled tuxedo rental company that owes $9 million to creditors and is going through liquidation.

The McNutt firm also represents four hedge funds in asset acquisitions in Delaware bankruptcy court.

'The difficulties in the subprime mortgage industry are a preview of what's going to happen in the world of corporate insolvency,' McNutt said.

Murray & Murray, a bankruptcy firm in Cupertino, Calif., has added three lawyers in the past four months, for a total of six lawyers. Name partner John Murray says his practice has expanded as a direct result of the subprime mess.

'We're going to be filing a significant Chapter 11 case for a subprime lender in the next couple of weeks,' he said. Small and me"

Who Says A Civil Trial Lacks Drama?

Something different to end today's posts. The Boston Globe published an interview with D. Graham Burnett under the rather startling headline of Blowing the status quo out of the water. So who is D. Graham Burnett? Well, he just wrote a book which the Boston Globe describes like this:

In 1818, in a New York City courtroom, the case of Maurice v. Judd posed an apparently straightforward question: Was whale oil fish oil, and therefore subject to state inspection and taxation? As expert witnesses testified, however, the trial quickly became a passionate public debate on the order of nature and the supremacy of man. In the fascinating "Trying Leviathan: The Nineteenth-Century New York Court Case That Put the Whale on Trial and Challenged the Order of Nature" (Princeton University, $29.95), D. Graham Burnett describes the trial, its undercurrents, and its repercussions with sublime wit and consummate skill....

Franchsing - The IFA Franchise University

I offer no endorsement of the International Franchise Association's Franchise University but only provide this for your information.

IFA offers a free course on “Franchising Basics” that you can try at any time.

To try the course now, just click the following link FREE Franchising Basics Course

Note: You do not have to register to take this free course, just click the link above. You will be directed to the guest account,
and will click on the course title Franchising Basics: the Official IFA Course (FREE COURSE) to begin the course

.At some point, I will take a longer and deeper look at this.

High court rules on estate issue

From the Indiana Lawyer comes High court rules on estate issue:

"The Indiana Supreme Court ruled on a matter of first impression today regarding the disposition of an entire estate during life or death."

In the Matter of the Guardianship of E.N., Adult, No. 88S01-0703-CV-121, deals with the issue of whether the guardianship estate planning statute authorizes dispositions of a protected person's entire estate, not just "excess" assets, as defined in the statute.


***

The Supreme Court today reversed the guardianship court's October 2003 order approving the guardian's modified estate plan. For several reasons, Justice Theodore Boehm wrote that the Indiana legislature didn't authorize transfers of someone's entire estate during life or death. The statute in question allows a guardian to dispose of "excess" principal or income, but E.N.'s trust disposed of all of his assets. If the legislature had intended to authorize dispositions at death, it would have authorized wills, trusts, or other estate planning tools to allow it.

Indiana Code 29-1-5-8 provides that with the exception of revocation upon divorce, no written will or any part of it can be changed or revoked because of the condition of the testator. The estate plan effectively revoked E.N.'s valid will, wrote Justice Boehm.

"The legislature is certainly free to authorize guardians to dispose of all property at the protected person's death, but as of now it has not done so," he wrote.

An Indiana Legal Glossary

The Indiana Judiciary website has a page ofGlossary of Legal Terms. The page applies mostly to appeals, and civil and criminal cases, it may be of some help in understanding terms that cannot be rendered in plain English.

About Employees and Subcontractors - FedEx Ground litigation

I mentioned the problems of classifying employees as subcontractors here. The Alaska Employment Law Blog published DAlaska: Wage Claims by FedEx Ground Drivers which has a quick study of the problems FedEx has gotten into with its use of subcontractors. If you are thinking that you can save dollars by classifying your employees as subcontractors, then take a look at this post and chase down its linked information. Paraphrasing Kipling: an employee is an employee and a subcontractor is a subcontractor and never shall the twain meet.

Indiana Commercial Foreclosure Law: From The New York Times: "Foreclosures Hit A Snag For Lenders"

Indiana Commercial Foreclosure Law has a post that seems to fit into what I wrote earlier about Ohio foreclosures. I still have nto time to read all of From The New York Times: "Foreclosures Hit A Snag For Lenders" but hope to do so this weekend.

"If you deal with mortgage security pools, and in particular the foreclosure of mortgages within such a pool, you should read today's interesting article from The New York Times: 'Foreclosures Hit a Snag For Lenders'. The article addresses federal court foreclosure litigation in Ohio and specifically an opinion by Judge Boyko dismissing fourteen cases because the plaintiff (foreclosing entity) failed to prove it had standing to pursue the cases. I located the Judge's October 1 order referenced in the article: .pdf. My colleague Chris Jacobson helped find the October 31 opinion: BoykoOpinion.pdf.

Alcoholic Beverages: a different sort of blog

Since I post news about business related blogs and with my continuing interest in the legal aspects of alcoholic beverages, I thought I might as well post a link to The Bruery Blog. The person writing this blog is written by the people running a new microbrewery. Fun to read and maybe educational and/or inspirational for those wanting to open their own microbrewery.

Employment law - news for applicants

When I was in-house for a local company I made a daily stop at George's Employment Law Blawg. I noticed today that George is altering his blog away from lawyers towards job applicants.

I was very pleased to see my #17 ranking. I didn’t make the American Bar Association’s “Blawg 100,” which was the cover story (just about the only story) in this month’s ABA Journal, but I’m positioning this blog more in the general career market and don’t try to appeal to lawyers too much — so this ranking means more to me.

His writing is just as good and I still think this is one of the best employment law blogs.

Estate Planning: Why Get a Will?

From New York's Sui Generis blog comes Trusts & Estates Horror Story.

The client finished the estate planning but his intended beneficiary did not. Think about it.

Homeowners must follow health codes

From last week's Indiana Lawyer Homeowners must follow health codes:

"Owners of houses or mobile homes they construct themselves still must follow Indiana health codes, the Indiana Court of Appeals ruled today. The appellate court overturned a trial court's ruling that a section of Indiana code exempted certain homeowners from obtaining a permit for septic systems."

Why do you need a lawyer for your business?

Technobabble answers that question quite well with http://lawenforcementweb.info/2007/12/09/legal-assistance-ways-in-which-lawyers-can-help-your-business/.

With this blog getting few comments, I am left wondering what are the reactions to non-lawyers to this kind of post. I admit to some self-serving marketing of my services but even more than that is a lot of venting on my part. Venting? Yes, I get to vent my frustration towards business owners who prefer to wait till a complaint and summons lands on their desks before consulting a lawyer. Litigation costs more in money, time, and nerves than having a lawyer who they can talk to and who talks to them. For twenty years I have dealt with area businesses but I have never been able to convince of the benefits of getting a lawyer on board early in the business' life or of keeping one. By the time I saw them for a litigation matter, the majority were on the slide to failure. That concludes my rant for the day.

Go read the article at Technobabble, realize that it is not written by a lawyer, but this lawyer thinks it has a lot of good sense. Call me f you have an Indiana business or are starting up an Indiana business, and want to discuss this subject further.

Businesses - Do you have a blogging policy?

If you do not, then I suggest reading Blogging consequences. Allot some time to do so, the post is not short. The article points out cases where a blog created liability on the grounds of defamation and cases where employees lost their jobs because of their blog posts.

(I also find it interesting that this blog, Quality System, comes to us from India, and is loaded with references to American law. Any sign of the world's flatness?)

More Tales of Do-It-Yourself Estate Planning Gone Amok

Florida Estate Planning Lawyer Blog has a collection of cases where doing estate planning by yourself lead to trouble. Start with Do it yourself Estate Planning: Bad News Part 5 as it has links to other articles in the series.

21st Amendment Anniversary

As Professor Bainbridge points out (and I forgot) in Prohibition Yesterday and Today Prohibition ended seventy-four years ago this past Wednesday.

Professor Bainbridge points out how we still try to prohibit what some people think are not good for us, but I want to point out how Prohibition still looms over the alcoholic beverage industry.

Absinthe made a big splash this past year. My attention having been on breweries, beer and cider, I never thought much about absinthe. Looking at the traffic to this blog, absinthe is the only topic attracting attention on the alcoholic beverage front.

The New York Times published A Liquor of Legend Makes a Comeback this past week. For those interested in the liquor only, I suggest clicking on the link now. Others might want to read the following, for it does a good job of describing how tortuous can be the process of getting a product away from the Treasury Department and to the public:

"The division of the Treasury Department that approves alcohol packaging sent back his label seven times, he said. They thought it looked too much like the British pound note. They wondered why it was called Absinthe Verte when their lab analysis said the liquid inside was amber. Mostly, it seemed to him, they didn’t like the monkey."

“I had the image of a spider monkey beating on a skull with femur bones,” Mr. Winters said. But he said that the Alcohol and Tobacco Tax and Trade Bureau thought the label “implied that there are hallucinogenic, mind-altering or psychotropic qualities” to the product.

“I said, ‘You get all that just from looking at a monkey?’”

His frustration came to a sudden end last Wednesday, when he learned the agency had finally granted approval to his St. George Absinthe Verte, the first American-made absinthe on the market in almost a century.

Federal law regulates the labels for alcoholic beverages and those regulations reflect a moralistic concern for the effects of alcoholic beverages on the public.

Another example of Prohibition's linger effect can be found in These farms' cash crop is bottled. Nowadays we think of Prohibition as a federal matter but the battleground was in the states before the passage of the Eighteenth Amendment.

Estate Planning: Who is Your IRA Beneficiary?

You and Yours Blawg makes a really good point in its article, Do your heirs a big favor: Choose IRA (and other) beneficiaries.

Why is not looking at your IRA beneficiaries not wise? Because often the default beneficiary is the estate. From and IRA perspective, and estate is not a favored beneficiary. Human beings as beneficiaries have the right to stretch-out their inherited IRA's over a period of time - thus deferring any income tax on the dollars in the IRA. Estates as beneficiaries must have the entire IRA distributed within 5 years, thus triggering payment of all the income tax on the dollars.

Open Door/FOIA: GovernmentDocs.org

In trying to keep with what is happening in Open Door and Freedom of Information Law, I ran across GovernmentDocs.org -- Community Government Document Review System. The site describes itself as follows:

"GovernmentDocs.org was created to advance the values of open and accountable government. This site gives the public an unprecedented level of access to government documents by allowing users to browse, search, and review hundreds of thousands of pages acquired through the Freedom of Information Act (FOIA) and other public disclosure, or “sunshine,” laws."

For those with the interest, I suggest taking a look.

Wills: Doing it Yourself

Thanks to Wills, Trusts & Estates Prof Blog for pointing out this USA Today article Get yourself a will: Here's a way.

I am a bit more critical of the newspaper article than was the Wills, Trusts & Estates Prof Blog . Having usual depth of USA Today, the article explains very little about the do-it-yourself Will products featured in the story. Wills, Trusts & Estates Prof Blog's Self-Help Estate Planning Techniques Publicized faults the article for this:

I would, however, have been more comfortable with a stronger warning about the major problems that often arise when individuals do self-help estate planning. You could do open heart surgery on yourself, too, but that doesn't mean it's a good idea.

I do love that phrasing of the last sentence. Reminds me of the television commercial where the surgeon is giving instruction over the telephone to the fellow about how to operate on himself. I would like a stronger warning, too.

I also find the article using the word "drafting" without explaining more scary.

Any adult of sound mind can draft a basic will on his own for a fraction of the cost of turning to a trust and estates attorney. It may not be the most comprehensive will, but at least you will have a legal document designating guardianship for your children, naming beneficiaries and specifying your last wishes. (At the same time, be sure to update beneficiary forms for any IRAs, 401(k)s and life insurance policies you have.)

Why scary? Because drafting is the least dangerous point for the do-it-yourself crowd. Execution's dangers go completely unmentioned.

The best uses for a Will drafting software package are these:

1. To get the person using the software to think about how they want to plan their estate.
2. To present a written plan for an attorney to work off of.

Business Law: Employer Identification Numbers (EIN) FAQs

For those starting a limited liability company or a corporation, you need an EIN. IRS maintains FAQs (Frequently Asked Questions) about EIN numbers. These FAQs include:

Do You Need an EIN?

Online EIN: Frequently Asked Questions

Think arbitartion good for employment law cases?

Then take a look at California Labor & Employment Law Blog's Is Arbitration Good or Bad for Employees?:

"This question is often debated among attorneys, judges and arbitrators. Judges like arbitration because they’re chronically overworked. For instance, the U.S. District Court for the Central District of California had the honor of being the second busiest federal district court in the entire country, with 11,585 civil cases filed in 2006 alone. Judges view arbitration as a way to get disputes out of their overburdened courts. Arbitrators love arbitration because they charge lots of money. And some (but not all) defense lawyers like arbitration for exactly the same reasons most employees should run away from arbitration"

Business law blogs

Yes, another round up of business law blogs.

For a bit more formal sort: BusinessAssociationsBlog.com. Written by Stephen Bainbridge of UCLA School of Law. Professor Bainbridge writes about law, business and more interesting topics here.

Warning: my recommendation here may be just a sign of my innate contrariness. Written by another law professor, I found Legal Infrastructure more the interesing blog

I do not watch The Office. Not its American or BBC incarnation. Which may be why I do not get "that's what she said" which uses The Office as the springboard for employment law issues. Good writing, though.

House Bill Would Create Govt. Copyright Czar - News and Analysis by PC Magazine

From PC Magazine comes House Bill Would Create Govt. Copyright Czar:

Several members from both sides of the aisle – including Chairman John Conyers of Michigan and ranking member Lamar Smith of Texas – on Tuesday introduced a bill, H.R. 4279, that would further crack down on intellectual property violations, and create several new government positions with the power to enforce the new law."

***

Specifically, the bill calls for strengthening the civil and criminal laws relating to copyright and trademark infringement. It would also create an intellectual property enforcement representative who would report to the White House, and establish a permanent intellectual property division within the Department of Justice. Intellectual property officers would also be granted the authority to work with international authorities for anti-piracy efforts.

***

A provision in the bill allows the government to seize "any property used, or intended to be used, to commit or facilitate the commission of a violation … that is owned or predominantly controlled by the violator or by a person conspiring with or aiding and abetting the violator in committing the violation."

Those are the highlights. The article contains pro and con positions on the proposed law. I think protecting my client's trademarks important but I see the results of the RIAA litigation and think trademarks are about to go down the same route.

Consumer Law Website

I neglect the consumer side of this blog a bit too much. Then what better thing to do than give a shout out to The National Association of Consumer Advocates ?

The organization describes itself as follows:

"The National Association of Consumer Advocates (NACA) is a nationwide organization of more than 1000 attorneys who represent and have represented hundreds of thousands of consumers victimized by fraudulent, abusive and predatory business practices. As an organization fully committed to promoting justice for consumers, NACA's members and their clients are actively engaged in promoting a fair and open marketplace that forcefully protects the rights of consumers, particularly those of modest means."

Start ups: some reading material

I want to share the following article 20 Most Important Questions In Business …. Too long for easy quoting, a must read for those starting businesses and not too bad for those who have already started their businesses.

You will find Starting a New Business leans more towards the legal side of starting a business. Lee Watson is a Minneapolis attorney but nothing on this web page does not apply to Indiana businesses. He echoes a lot of what I have written on this blog under the topic of start ups. He is just more succinct.

If you need to consult a lawyer about starting a business in Indiana, please give me a call. This is one area of my practice I do not limit to central Indiana.

Cookie Leads to Trademark Dispute

A little trademark humor from madisonian.net:

"Pittsburgh-based restaurant icon Eat ‘n Park is in the news with a claim that a New York-based cookie company is infringing Eat ‘n Park’s trademark rights in the smiley cookie. Local broadcaster WTAE posted its story on the dispute on YouTube."

The full article is A Tasty Trademark Dispute.

For the lawyers in the crowd: An Idea to Help Start Ups

Ah, the things found when we google!

Such as this press release from 2005: New Intellectual Property and Business Formation Clinic to offer a variety of legal services to the St. Louis community.

From helping start-up companies grow into strong businesses to guiding inventors as they obtain patents, students in the Washington University School of Law's new Intellectual Property and Business Formation Legal Clinic, working under the supervision of experienced intellectual property law attorneys, will offer a variety of services to the University and St. Louis community.

Okay, I have not gone completely off the rails. Bear with me for a moment. This legal clinic continues its existence at Washington University. The school has a web page for the clinic: Intellectual Property and Business Formation Legal Clinic. (The University of Maryland School of Law has a similar project: Maryland Intellectual Property Legal Resource Center).

All well and good - for law schools which can forgo profit making. Why should the private bar take an interest? Because this reminded me of something I read awhile back at the Arborlaw blog, Ann Arbor, Michigan ranks #1 in 2007 for knowledge workers where it was announced that the local firms in Ann Arbor would provide "...free company startup services to downsized Pfizerites, and I have decided to do this as well. Arborlaw will provide free incorporation or LLC formation for qualifying former employees of Pfizer who become entrepreneurs and start a new technology-based business in the Ann Arbor area." Arborlaw then published details on this program in Arborlaw to Grant Free Startup Legal Services to Pfizer Ex-Employees.

Now what if lawyers or county bar associations expand the Ann Arbor idea to include basic intellectual property for a reduced fee? Criteria for such help needs development but I think Ann Arbor provides a guiding light for those criteria.

Federal Rules of Civil Procedure

The new, imrpoved version of the Federal Rules of Civil Procedure from LII at Cornell law school

"These rules govern the conduct of all civil actions brought in Federal district courts. While they do not apply to suits in state courts, the rules of many states have been closely modeled on these provisions."

Following up on Hershey v. X-IT Activewear, Inc

I reported on this case here. Today, I finally got a look at the Complaint. Hershey caught everyone's attention by its using Indiana's Crime Victim's Statute as a basis for its Complaint. The following is the part of the Complaint utilizing the Crime Victim's Statute:

Count VII: Civil Action under the Indiana Crime Victims Act

69. Hershey incorporates by reference the allegations contained in all previous

paragraphs of this Complaint.

70. Pursuant to the Indiana Crime Victims Act, IC. 34-24-3-I, a person that suffers pecuniary loss as a result of a violation of IC. 35-43 et seq. may bring a civil action against the person who caused the loss for treble damages, costs of the action and reasonable attorneys' fees.

71. Defendants have violated IC. 35-43 by committing the following offenses:

a. "Criminal Mischief' as defined in IC. 35-43-1-2;

b. "Conversion" as defined in IC. 35-43-4-3 and/or

c. "Deception" as defined in IC. 35-43-5-3(a)(6) and (9)

72. Hershey is the victim of Defendants' criminal violations and, as a result of these violations, has suffered actual pecuniary damages.

73. Accordingly, Hershey is entitled to an award of those actual damages as well as statutory treble damages, corrective advertising damages, costs and reasonable attorneys' fees.

For those not knowing these criminal statutes, please let me introduce you to them:

IC 35-43-1-2 Criminal mischief; penalties
(a) A person who:

(1) recklessly, knowingly, or intentionally damages or defaces property of another person without the other person's consent; or
(2) knowingly or intentionally causes another to suffer pecuniary loss by deception or by an expression of intention to injure another person or to damage the property or to impair the rights of another person;
commits criminal mischief....

IC 35-43-4-3 Conversion
(a) A person who knowingly or intentionally exerts unauthorized control over property of another person commits criminal conversion....

IC 35-43-5-3 Deception
(a) A person who:

***

(6) with intent to defraud, misrepresents the identity of the person or another person or the identity or quality of property;

(9) disseminates to the public an advertisement that the person knows is false, misleading, or deceptive, with intent to promote the purchase or sale of property or the acceptance of employment....

This voice in my head keeps repeating that there is a thing line between brilliance and chutzpah. After all, what we would we think of Custer if he had lived through the Little Bighorn? Remember that the basis for the lawsuit is:

12. Hershey is the owner and1or licensee of multiple federally registered trademarks, state registered Irademarks and trademarks protected by common law including, but not limited to, the following (hereinafter, the "ALMOND JOY® Trademarks"): the collection of ALMOND JOY® related trademarks, including the famous "Sometimes you feel like a nut Sometimes you dont" slogan, which together have been used in commerce by Hershey or its affiliate companies and predecessors in interest for decades in connection with ALMOND JOY® brand candy and related products.

***
14. Hershey and its affiliate companies have extensively used and promoted the
LMOND JOY® Trademarks at considerable expense, and Hershey has acquired significant Goodwill and public recognition of such.

15. Authorized products bearing the ALMOND JOY® Trademarks are referred to collectively herein as "Hershey Products."

16. The ALMOND JOY® Trademarks have been used in commerce for many years. are immediate]y recognizable by consumers and are famous marks.

***
20. The ALMOND JOY® Trademarks are distinctive and/or have developed secondary meaning and significance in the minds of the purchasing public. Furthermore, Hershey's Products are recognized by the purchasing public nationwide and are immediately identified by the purchasing public with Hershey, its affiliate companies, and their high quality goods and services.

21. As a result of the goodwill and immediate recognition and as a result of extensive sales and advertising, the ALMOND JOY® Trademarks have become highly valuable.

22. Upon information and belief, Defendants have engaged in the business of
advertising, selling, and distributing certain infringing products including, without limitation, the product included in Exhibit I. attached hereto (the "Infringing Merchandise" and/or "Infringing Products"). Defendants' unauthorized use of the ALMOND JOY® Trademarks is a deliberate effort to trade on their value. Such unauthorized products infringe on Hershey's trademark and other intellectual property rights.

And a T-shirt that says "Sometimes you feel like a slut..sometimes you don't."

I do not see it. I do think that Hershey has stated a pretty good case for a parody but that is not quite what they wanted to do here.

But why did I say this might be brilliance? Because I have never heard of these statutes being applied to intellectual property. Personal property, yes. Applying these statutes to intellectual property is not something I would think of doing but then I do not think application will survive contact with defense counsel.

Why a healthcare power of attorney?

If you want to know why - and get a taste too of the problems wielding a health care power of attorney, then read the The Boston Globe's Families grapple with anguish of DNR orders:

"For families facing the impending death of a loved one, few topics trigger more anguish than the Do Not Resuscitate order. The subject can be so painful that relatives and doctors wait too long, until the patient's mental capacity wanes and the tough decision is left to family members. There is little ambiguity in a DNR order: Emergency medical staff must withhold CPR and other life-reviving treatments if the patient's heart or breathing stops, allowing death."

Foreclosures Investigated

From the New York Times of last week, Foreclosures by Lender Investigated :

"The federal agency monitoring the bankruptcy courts has subpoenaed Countrywide Financial, the nation’s largest mortgage lender and loan servicer, to determine whether the company’s conduct in two foreclosures in southern Florida represented abuses of the bankruptcy system."

***

In Florida, one of the trustee’s inquiries involves Manuel Del Castillo and Maria E. Pena, Miami borrowers who filed for protection last May under Chapter 13 of the bankruptcy code. In July, Countrywide Home Loans filed a claim, saying that the borrowers owed almost $279,000 on their loan.

Included in the figure, court documents show, was an $11,924 advance Countrywide said it had made to an escrow account before the borrowers filed for bankruptcy as well as an insufficient- funds fee of almost $683.

In the second case, the trustee has asked for documents relating to Countrywide’s claim for almost $101,000 against William and Joyce Chadwick, borrowers in Boca Raton, who filed for Chapter 13 protection in October 2005. Included in that figure was $2,400 in overdue mortgage payments.

The borrowers in both cases objected to Countrywide’s claims of what was owed. In court documents, the Del Castillos argued that Countrywide had not provided an itemized list of the charges, while the Chadwicks contended that their mortgage payments were current.

Actually, delay may have been a good thing. Reading this news with the news coming out of Ohio (see my article on that here), I think we might have a trend of lenders behaving badly.

Employment Law: Bizarre Behavior Triggering FMLA leave

Employment Law Lessons from HR Specialist writes about Employee's Bizarre Behavior Can Count as FMLA 'Notice' .

"Typically, employees must notify you if they have an FMLA-qualifying “serious” physical or mental condition. But what if the employee, herself, isn’t aware of this need? Is it up to you and your supervisors to recognize any behavior changes that may indicate the presence of a serious FMLA-qualifying condition? In cases of psychiatric problems it likely does, as the following case shows."

I found the following most interesting about this article:

3 Lessons Learned … Without Having to Go to Court

Observe Abrupt Changes in Behavior.

When a perfect employee with a perfect record has a sudden behavior change—sit up and take “notice” … literally. The court, in this case, is saying that counts as an employers’ constructive notice for FMLA leave. We are seeing these cases over and over—which means it is a trend.

Remember, FMLA is an Employee-Friendly Law. It was created to help employees balance health issues (for themselves and family) with their job. Don’t be so quick to dismiss an employee on a technicality.

Don’t ‘Psych Out’ an Employee. As the court pointed out, sometimes employees with psychiatric disorders don’t know they have a problem. This is a fundamental difference between mental and physical illness. Employees know when they have broken legs or symptoms of other problems, like blurry vision. But mental disorders cloud up the ability to think clearly, which is what the ability to ask for FMLA leave requires.

Besides some great advice, I think this is a prime example of what the Internet/blogs bring to the delivery of legal services and what clients are missing out on.

Powers of Attorney - Another Problem

While I advocate getting a power of attorney on this blog, I am conscious of some problems with powers of attorney. I wrote a bit about a problem with powers of attorney here.

I think Death and Taxes - The Blog hits the same point in The Dangers of Powers of Attorney but in less time and more clarity than I did. Do read it.

Copyright Law of the United States

The U.S. Copyright Office has the Copyright Law of the United States online. HTML format and all that.

Reading Around the Blogs

I envy Your Name Is My Business from Anthony J. Tambourino. I wish I could be as succinct and lively. Mr. Tambourino describes his blog as musings on Trademark, Copyright, Business and other legal matters.

On the other hand, Ideoblog has things to say about business but a bit more and maybe at a level that is not so practical. Lot of fun to read, though. It bills itself as "A blog about ideas." It has them and they worth reading and thinking about.

I was checking up on Deliberations when I learned about Mortgage Meltdown in the post Welcome, Mortgage Meltdown Blog. This is the is the first blog I have seen on the subprime mess. I think this one will be seeing a lot of traffic over the next year.

I have not checked out a few blogs for a while. One of these is the Texas Non-Compete Blog. Considering how often I have been writing about the problems of hiring employees from competitors (See here and here), I think Texas Trade Secret Law: When Your New Employee Knows Too Much has sound advice. One caveat: what works in one state may not have the same result in another and I know of no Indiana case with the same facts as these. However, I would not mind trying a case where the new employer used this strategy.

Dean Hanley writes about employment law from a slightly different perspective in his Alaska Employment Law. I only had a chance to skim and I see some things I want to go back and check out.

Another blog I have not read lately is Arkansas Business Litigation Lawyer & Attorney. Looks like they have been having some "fun" trademark cases in Arkansas.

Binary Law Blog writes about law in the digital age. I admit lawyers might find this more interesting - if they have interest in high tech. I think anyone who wants to know more about the intersection of law and high tech will have a good time.

Off-Topic - sort of about franchising

Here I am looking over FranchiseLawBlog when I see Wendy's Franchisees Missing Dave. Frankly, so I have. Reading I see that others also have a similar complaint that I have:

Complaints include the introduction of a summery fruit salad in the depth of winter, the current ad campaign featuring men wearing pigtailed Wendy fright wigs and an autocratic decision-making style.

In (a probably vain) attempt to keep this post on topic, we might be seeing a problem common to businesses when the originator passes from the scene. Just what was the succession planning at Wendy's? What planning have you done with your business?

Meanwhile, I really think the Wendy's advertisements are about the worse out.

A Quiz for Business Owners - Do You Like Dealing with the IRS?

Well, do you like an up close and personal meeting with the Internal Revenue Service?

Or the Indiana Secretary of State?

Or any other government agency that has the ability to shut down your business, if not also seek a criminal conviction?

If the answer to those question is NO, please go to the next question:

How much do you involve your lawyer into your business decisions?

Or do you wait till the horse manure has hit the fan before you start yelling for a lawyer?

Why business people do not involve their attorney in business decisions has puzzled me for over twenty years. Another puzzler is those who do not have a lawyer for their businesses.

Yesterday, I spoke with a client whose employer is getting some very personal attention from a government agency. Seems that the employer classified its people as subcontractors and the government agency wants to make sure of the classification. Now, I have been telling my business clients for years that the IRS targets businesses classifying employees as independent contractors. Hearing that a company has done this and received the government agency's attention, my first reaction was - "What kind of idiot is running this place?" Obviously someone without an attorney.

Seriously, if anyone with a business passes by and wants to comment on this post then please do so. Just click the link below that reads "Post a Comment".

If you have an Indiana business and want to know how I can help your business, please give me a call at 765-641-7906. Calling before you get stuck between the rock and a hard place is the best time to call.

Law Prof writing on partnerships and limited liability companies

The Law Professor Network publishes Unincorporated Business Law Prof Blog by Gregory Duhl. The blog describes itself as the Official Blog of the AALS Section on Agency, Partnership, LLCs, and Unincorporated Business Associations.

I notice that no updates appear after October and I assume the content will find more interest with lawyers than with laypeople. For laypeople, I say the blog reflects the little use lawyers make of partnerships. That does not explain the lack of information on LLC litigation.

ELT providing free Wage & Hour Webinar on 12-4-07

As pointed out in the following article, federal wage and hour laws are important. So when I see the notice from ELT for A Guide to Wage and Hour Compliance in 2007: Cutting-Edge Strategies from the Nation’s Top Experts, I think this might be a good thing to post. The time is 11:00 AM Pacific Standard Time.

I know nothing about ELT except from what I discovered this morning on their website. By the way, thanks to Rush on Business for leading me to the website.

Wage and Hour Litigation by Way of Iowa

Up early this morning trying to catch up on some reading and a little writing here. So what has Iowa got to do with Indiana? Both states share the federal Fair Labor Standards Act (FLSA). Rush on Business has three good articles on the FLSA. Start with the latest - Tips on How to Avoid Wage & Hour Lawsuits.

Since I left my in-house position, I have not kept as close an eye on the FLSA and these articles contain some very good reminders. For businesses I cannot think of any better advice than this:

Update: SMBTime blog had a great point in a follow up to this blog post regarding the fact that businesses should consider hiring an attorney to conduct the wage and hour audit so as the maintain the attorney-client privilege.

An Interesting Business Law Related Blog

I ran across madisonian.net on November 27. Do not be put off by it being written by law professors. Anyone alluding to Chumbawamba possesses a good sense of humor which translates into a writing that is anything but pedantic. The following example comes from Real Online Competition: The Right to Exit (and I suggest reading all of the post):

I can just imagine the howls of protest–”Lock-in is the whole Web 2.0 business model! Give ‘em stuff for free, use their UGC, and monetize the eyeballs!” But my hope is that (user sunk costs + lock-in) becomes a much less compelling business model over the coming decade. Although optimism on “innovation markets” has largely anesthetized antitrust authorities looking at these situations, we should reconsider whether encouraging big players to compete to capture a market produces more gains and innovation than rules that reduce the cost of exit from dominant players.

I am aware of the Web 2.0 business model but have not studied it in any depth. Yet, I can see the writer's point quite clearly. One that is well worth thinking about for businesses, for consumers and for their lawyers.