So What is Wrong About Using Online Forms?

I had thought to do a dissection of some of these forms until I read The Perils of Using Form Agreements from Deal Attorney. I think this article is a good place to start for anyone contemplating using an online form.

I think the article offers a more subtle reward for you non-lawyers - even those who are not in business. Read the post and you will see what having an attorney brings to document preparation. It is not merely having a law degree that is important here but the methodology brought to bear on analyzing the worth of a document. The experience gained by practicing law to know the good, the bad, and the ugly points of forms. Like many tools, legal forms can bring good and they can bring harm. You can see how a lawyer handles a form by reading this post.

Trademarks: Champagne

I suggest reading Produced in Champagne, but What Do You Call It? from The New York Times is not the typical trademarks article. First, it is European although the broader enforcement issues of a trademark remain the same. Second, it involves a treaty rather than a statute, but remember under our federal constitution that treaties are a source of law. Mostly, it does show the power of trademarks.

Employment Law and Social Networking Sights

Suggested reading for employers and employees alike from The Washington Post: When Young Teachers Go Wild on the Web.

Part of me wants to say that college educated, licensed people like teachers ought to know better. So having written that, let me go on to observe that some do not know better.

Let us be clear that teachers being employed by government agencies have different obligations to their employer than do private employees. Indiana allows for the firing of most employees for any reason whatsoever as Indiana is an employment-at-will state. Teachers fit into a different category. Which means those without employment contracts could be fired for the activities described in the WAPO article.

Employers need to consider whether they want to monitor Facebook and MySpace for pages of their employees. Employers could do something described in the article:

Local school officials said they don't necessarily scrutinize Facebook when they conduct background checks on teachers. But in some parts of the country, they do.

"I know for a fact that when a superintendent in Missouri was interviewing potential teachers last year, he would ask, 'Do you have a Facebook or MySpace page?' " said Todd Fuller, a spokesman for the Missouri State Teachers Association, which is warning members to clean up their pages. "If the candidate said yes, then the superintendent would say, 'I've got my computer up right now. Let's take a look.' "

Public employees need to consider this:

If teachers claim free speech protection under the First Amendment, Simpson said, the U.S. Supreme Court recently ruled that governments can fire employees if their speech harmed the workplace's mission and function.

Prudence and discretion are not necessarily bad things. When I was much younger, I remember hearing something along the lines of this: do not do anything you would mind seeing on the front page of the newspaper. The Internet allows all of us to create our own modern version of the newspaper front page.

In the following is some good advice for all potential employees:

In an interview, Melton said: "Is my Facebook profile open? I definitely thought I closed [the page] to people. . . . " Access to her page was later restricted, effectively withdrawing it from public view.

Employers, you have a lot more to think about concerning work policies. About all I can offer is that you make a decision on whether or not to that you care about what your employees do on Facebook and its competitors. If you decide other than to ignore employee pages on social networking sites, then put it into writing and stick to it.

Online Resoources: Searchable e-Discovery Case Log

A bit more for any lawyers is K&L Gates' Searchable e-Discovery Case Log:

"K&L Gates maintains and continually updates a database containing over 900 electronic discovery cases collected from state and federal jurisdictions around the United States. This database is searchable by keyword, as well as by any combination of 28 different case attributes, e.g., on-site inspection, allegations of spoliation, motion for a preservation order, etc. Each search will produce a list of relevant cases, including a brief description of the nature and disposition of each case, the electronic evidence involved and a link to a more detailed case summary if available."

I find this interesting both for its content and for its idea of presenting information for free on the Net. Probably does not seem like much for non-lawyers but I bet it took some convincing to get this done.

Franchise Financing News

My Biz Broker's More On Franchises interests me for this bit of information:

Indeed, with banks becoming more tight-fisted, the SBA is becoming the place more would-be franchisees are turning to. It’s what the SBA was created for, to provide access to capital for small businesses who can’t get it through conventional means.

Circumstances such as paying clients have lead me a bit away from current news on franchising but I think would have seen this information. Not that it seems strange considering our current economic conditions but I would like to see some confirmation for certainty. Meanwhile, it does seem good advice for new franchisees and franchisors.

Certification Requirements for Imported Natural Wine

New regulations proposed and can be seen here.

SUMMARY: The Alcohol and Tobacco Tax and Trade Bureau is adopting as a final rule, without changes, the temporary regulations implementing the certification requirements regarding production practices and procedures for imported natural wine. These requirements were adopted in section 2002 of the Miscellaneous Trade and Technical Corrections Act of 2004 as an amendment to section 5382 of the Internal Revenue Code of 1986.

Piercing Liability Protections of a Limited Liability Company - Some Ideas by Way of North Carolina

Wilmington North Carolina Business Law and Litigation Attorney Blog has a multi-part article on getting past the personal liability protections of a LLC. This article bears paying attention to for Indiana limited liability companies.

I have yet to see a case from Indiana on the subject but it is one that interests me both from the perspective of creating limited liability companies for clients and also because I may be suing a limited liability company. North Carolina might have some ideas for Indiana. In Piercing the LLC Veil in North Carolina - Part II, the North Carolina statute is quoted:

The North Carolina Limited Liability Company Act protects LLC members from liability for the actions of the LLC. N.C.Gen.Stat. § 57C-3-30(a) provides:

A person who is a member or manager, or both, of a limited liability company is not liable for the obligations of a limited liability company solely by reason of being a member or manager or both, and does not become so by participating, in whatever capacity, in the management or control of the business.

Indiana's has a similar statute:

IC 23-18-3-3 Personal liability of members, managers, agents, or employees
(a) A member, a manager, an agent, or an employee of a limited liability company is not personally liable for the debts, obligations, or liabilities of the limited liability company, whether arising in contract, tort, or otherwise, or for the acts or omissions of any other member, manager, agent, or employee of the limited liability company. A member, a manager, an agent, or an employee of a limited liability company may be personally liable for the person's own acts or omissions.

If anything, Indiana offers wider protection to limited liability companies. Neither North Carolina nor Indiana defines the acts or conduct or omissions that might lead to personal liability.

Apparently, North Carolina lawyers have attempted to use the traditional, veil-piercing factors from corporations law as a guide to piercing the liability protections of the LLC. I must agree with this paragraph:

Of course, such an approach misses the obvious: an LLC is not a corporation. They are different types of business entity altogether. Just because the courts can look past a corporation's liability protection under certain circumstances, it does not automatically follow that those exact same circumstances should cause an LLC member to lose liability protection.

Not knowing the facts of the North Carolina cases, I am left with some guesswork about the reason for using corporations law. Either it is a sign of how conservatively our lawyer's brains work or it is a sign of laziness or both. I would think the better analogy would be to limited partnerships. Whether such an argument gets one any further in piercing a LLC's liability protection is a question for another time but I doubt this argument would be any more successful.

I also suggest reading Piercing the LLC Veil in North Carolina - Part 3. In this part, the argument appears to be that creating a LLC for the purpose of defrauding creditors might lead to a piercing of the veil. I find this appealing as an equity style argument but I keep thinking the evidence had better be pretty and prepare for an appeal if successful.

Ah, The Vagaries of Litigation

Read Trade Secret Jury Verdict : Redwood Health Services v. Clifford Der, dba Benefit Brokerage Services from The Trade Secrets Vault Blog to understand what I mean by vagary.

Verdict-Defendant : The jury found in favor of the plaintiff on the counts of breach of fiduciary duty and interference of contract, and awarded it $59,780. The jury found for Der on the counts of breach of contract and common counts, and awarded him $135,291.

I see here a good example of why cases settle rather than going to a jury and leaves me with questions of evidence.

New Real Estate Case from the Indiana Court of Appeals

The Indiana Court of Appeals handed down Hays v. Hays (PDF format) yesterday. At issue was interpreting a deed's first-right-of-refusal clause and Indiana's partition statute. The parties involved were the son of the grantors and the wife of a deceased son.

Two things come to mind as I read the case. First, that good drafting follows having a good enough imagination to foresee the reasonable contingencies that might follow out of the relationship of people to the subject of the deal. Lacking any means for deducing the grantors' intentions, they may have considered that one son would die leaving a wife and then, too, maybe not.

The second thing coming to my mind is the operation of the partition process. The property will now be sold. Not part of it, but all of it. From my reading, I think saying that is not the result desired by the son is a gross understatement. Whether selling the property is best for the property is a question that cannot be answered by the opinion.

Small Business Estate Planning

Some good ideas from TLD's General Counsel Blog:

A buy-sell agreement is one option (which won't be discussed here in this post) and setting up an estate plan is another option often considered. If you set up an estate plan to include a revocable living trust, you can assign or transfer your business interest into your trust and specify what happens to that share of the business interest.

One common approach for married couples is to transfer the business interest to the trust and allow the surviving spouse to manage the interest and upon the death of both spouses, the interest is then transferred to the surviving children either in equal shares or to the child who is most interested in the business interest (for whatever reason). Additional language can be included depending on the type of business interest involved and what your wishes are in case something happens.

Remember that trusts are a tool. I do want anyone to think they are the only tool. Another tool may be the answer in another situation. In other words, one size does not fit all. The important things for business owners to do is to plan for the succession in their business and then take steps for carrying out the plan.

If you have an Indiana business and need legal counsel for estate planning, I am taking on new clients at this time.

Virtual Worlds - Virtual Law?

Going a bit afield for this post, but I decided while reading Virtually Blind's Blawg Review #156 that the future is here. I read William Gibson's cyber-punk novels a long time ago and some of the ideas and news discussed in the blog post seem very familiar. Ten years or so after the dot com bust, I am just as leery as anyone the transforming powers of the Internet. Okay, maybe I am not as leery as some because I do see the potential for business and for trouble in the virtual world. If I did not see this potential for business, I would not highly recommend reading the post from Virtually Blind and adding the blog to your RSS reader.

You may also want to take a look at Second Life DMCA Statement Raises Question: Does Provider Expeditiously Remove Infringing Material?.

New Court of Appeals Case on Crime Victim's Statute, Mortgage Foreclosure and Fidicuiary Duty

And discovery sanctions and attorney fees and garnishment orders. At sixty-seven pages, I still have not fully digested Prime Mortgage USA, Inc. v. Nichols (PDF format) beyond recognizing that this looks like a bombshell of a case. The Court of Appeals describes the issues as follows:

Issues

1. Whether Nichols's claim under Indiana Code section 34-24-3-1 (the "Crime Victims Statute") is barred by the statute of limitations;

2. Whether the Defendants were entitled to a jury trial on the amount of damages under the Crime Victims Statute:

3. Whether the trial court abused its discretion in ordering default judgments as a sanction for discovery violations:

4. Whether the trial court's award of damages was proper and supported by the evidence;

5. Whether sufficient evidence existed to hold the Defendants liable under the Crime Victims Statute;

6. Whether the trial court's award of attorney's fees was improper:

7. Whether the trial court improperly determined that Nichols's unpaid compensation constituted "wages" under Indiana Code sections 22-2-5-1 and -2:

8. Whether Nichols's claims are barred by the doctrine of unclean hands: and

9. Whether the trial court's garnishment order was improper under either Indiana Code section 27-1-12-14(e) or Indiana Code section 27-I-I 2-17.1(1).

That list excludes one important issue and why I fully expect a petition to transfer to the Indiana Supreme Court is being contemplated by the appellant: "The trial court held a hearing on damages. and awarded roughly eight million dollars to Nichols."

I plan on breaking the case down by topic in separate posts rather than one big post. Stay tuned.

Speaking of General Counsel: TLD's General Counsel Blog

I make a few comments below about general counsel for a business. Out of California comes TLD's General Counsel Blog giving us an example of the range for a general counsel and some good blogging, too. Tremaine, Lumsdaine & Doyle (the TLD of the title) subtitled their blog as "A Compendium of Matters of Interest to Businesses in California". Even with its California perspective, I think it has items of interest to businesses and lawyers outside of California.

Making the Most of Your Lawyer

Thanks to Wilmington North Carolina Business Law and Litigation Attorney Blog for the lead to Getting the Most From Your Attorney from The New York Enterprise Report.

The Wilmington North Carolina Business Law and Litigation Attorney Blog noted the following and I want to add an amen to this statement:

...In the third item on Dan's list is one I always emphasize:

Use lawyers to prevent problems, not just fix them. Many small businesses do not have attorneys until they think they need them. You need to make sure you are proactive in identifying legal issues before they become problems, and problems before they become lawsuits.

I would personally prefer to have my days be filled with short, simple, inexpensive legal work that solves problems and ends them, instead of having them filled with long, complicated, intractable and expensive problems. The latter might ultimately be slightly more lucrative for the attorney, but my view is that both myself and my clients are best served when the problems are handled while they are still small, manageable, easy to handle, and cost little to solve.

I would add something to points 2, 4, and 9 about selecting attorneys. There is a growing trend for outside general counsel. What is this? In-house counsel who are not employees but provide all the services of in-house counsel. I am aware of two companies providing this kind of service: In House Legal and Outside GC. I have been offering this sort of service for several years now. The point is not to select one counsel for a particular matter or networking with lawyers but having a lawyer acting as outside general counsel who has the network in place and knows the business objectives of the client.

Franchising: Evaluating a Franchisor

Rush Nigut has another good franchising post, Evaluate the Strength of a Franchisor, which comments on Evaluate the Strength of Your Franchisor Before Signing On from First Prize Franchise.

I, too, commend the original article to any potential franchisee. However, I think Mr. Nigut does a great job condensing everything written about the dangers and risks of franchising for franchisees:

One critical aspect to consider in my view is the brand itself. Is the brand recognizable? If not, the franchise better have a fantastic system, unique concept or protected intellectual property. Otherwise, I think you need to question whether the franchise is right for you.

If you would not spend your money at the franchise, why should anyone else?

And, yes, I know I said was cutting out the franchise articles but this was too good not to pass along.

Blog Review: Wilmington North Carolina Business Law and Litigation Attorney Blog

I would call Wilmington North Carolina Business Law and Litigation Attorney Blog a lawyer's blog. By that I mean the general public may not find it very useful or interesting but that attorneys should find it very interesting. At least, I did.

Franchising Epiphany

Before explaining what caused the epiphany, let me explain what is an epiphany. After all, I have heard some strange uses of the word. Here is the relevant part of the definition:

3. a. A sudden manifestation of the essence or meaning of something.
b. A comprehension or perception of reality by means of a sudden intuitive realization

This epiphany occurred while reading Rush on Business Blog's Franchise Due Diligence: Ask what they don't do well:

He says this evoked the best responses from franchisees when he conducted his due diligence. If you are considering a franchise be sure to talk to as many franchisees as possible. Speaking to only a handful is not enough

Frankly, I am quite annoyed at myself for not thinking about this when I was in-house counsel for a franchisor. Great advice for a potential franchisee.

The New Jersey Lawyers Blog

I mentioned this blog in a post yesterday. I wanted to give it a shout out as being a bit different from what I usually see in lawyer blogs. The blog refers to itself as "The New Jersey Lawyers Directory Blog" and does not seem attached to any particular law firm or lawyer. This might be a good idea for lawyers in a particular geographical or practice area to digest their posts.

IRS Products for Nothing, but No Free Chicks

Thanks to David Goldman and The Florida Estate Planning Blog for pointing me to five free business products from the Internal Revenue Service. Mr. Goldman lists the products with a brief discussion, so take a look at his blog.

Why Every Business Needs a Certified Public Accountant

Warning: a bit of snarkiness or just plain being a smart Aleck follows but I am deadly serious about the underlying point.

So why does a business need a CPA? Take a look at Please explain why the profits from my LLC is taxed at over 40%? and you will see Exhibit A for why a business needs an accountant (as well as a lawyer).

Article on Financing for New Business

Is there anything more troublesome to a new business than financing? I think not.

I have seen some good businesses go under because they lack finance. I have seen people with good ideas unable to get them off the ground from the lack of finances.

Since my interest lies in my business clients being able to get their business started and/or keep their business running, I pay attention when I see articles like New Business - Trading Equity for Cash.

If you are starting a business, guard your equity at all costs. Selling equity should be a last resort. Try to get loans or trade profit sharing in lieu of selling equity. If you must sell equity, do so only in small percentages. You do not want to the small business person in the example above.

The article contains practical advice on financing problems and is worth the time to read.

Limited Liability Companies: A Very Good FAQ from New Jersey

Yes, New Jersey. The New Jersey Lawyers Blog published Limited Liability Company – Questions and Answers. I see little disagreement with Indiana law and some common-sense answers to the questions.

I thoroughly agree with this (see my post "More about do it yourself LLC Operating Agreements"):

Question 5: I know that I can form an LLC online by myself. Why do I need a professional advisor such as an attorney?

Answer: True, you can form the company online, but the mere existence of the LLC offers little protection. A professional can draft the Operating Agreement to include the provisions you want and need and can monitor activities that may cancel statutory protection. You need good documents and procedures to benefit from the statutory protection. Further, you may get significantly more protection from an LLC formed in a different state or country. An advisor familiar with the options can help you make the right decision.

I will admit that the post raises a point for favoring LLC's over corporations that I had never considered:

Question 6: What is the difference between an LLC and a corporation?

Answer: The sole remedy of a creditor of a debtor/LLC member is the charging order against distributions. The creditor of a debtor/corporation shareholder may attach and gain ownership of the shares, thus giving the creditor significant management rights. For asset-protection purposes, the LLC is a better structure.

Yet, I do not see this as a major concern in Indiana. Corporate stock falls within the category of intangible personal property. Indiana's exemption law keeps stock with a fair market value of less than $200.00 in the hands of the owner/debtor. A closely held corporation's stock has no fair market value because of the lack of a market. I think this is an interesting idea but ultimately a wash.

If you are thinking of starting an Indiana LLC, remember that I am taking on new clients.

Small Business Administration Resources for Small Business

For start ups or existing small businesses, the SBA has a portal page here. Too much to easily summarize, I suggest bookmarking for future study.

A Third Party Interference Case In Anderson, Indiana

The Anderson Herald Bulletin's reports on a slightly different sort of third party interference with contract. However, after reading Pepelea wants $75K from city, I am have some major questions.

On the face of it this is a good case of third-party interference with a contract except for one thing. Was there a contract between the city and Anthem which gave Pepelea any rights?

After the contract was approved, it was sent to Anthem officials for them to sign. An unknown city employee contacted Anthem officials and told them to put the contract on hold until Jan. 1, when Ockomon, a Democrat, took office, according to the notice.

That paragraph contributes only massive confusion. I have written about third party interference here. If you read that article, you can see that at least two elements are at the least questionable: a valid, existing contract and who did the interfering.

Not that Pepelea is out of luck entirely. Without a contract, Pepelea would have a case for intentional interference with a business relationship and/or interference with a prospective advantage. If his attorney remembered to add these claims to the tort claims notice.

Collections: The Limits of Indiana's Jurisdiction

There are rules for getting at defendants who live out of state in order to get a judgment but for this post I am assuming that getting paid is the issue and not getting a judgment.

Indiana's civil jurisdiction ends at its border. Subpoenas, orders to appear and the like have no force outside of Indiana. Which means the judgment defendant cannot be compelled to return to Indiana for a hearing.

However, the court can issue a body attachment which would be effective if the judgment defendant were to return to the county where the court was that entered the judgment.

Just as an Indiana court cannot get a person residing outside of Indiana, neither can the court issues orders taking property lying outside of Indiana.

Garnishment might be a whole different thing. If the judgment defendant works for some company doing business in Indiana, then the judgment defendant's wages could be garnished.

When I started practicing law any discussion of collection against someone outside of Indiana would end there. With all the bank consolidations of the past twenty years, the discussion needs to go onto bank garnishments.

Most people think garnishment means taking a person's wages. It is that and a bit more. Garnishment is a legal proceeding where the creditor gets an order from a court to a third party who owes the judgment defendant money to pay the creditor the amount owed to the judgment defendant. Banks are in the position of a debtor to their depositors. Which means, if the judgment defendant lives out of state but has an Indiana bank then the judgment defendant should expect a garnishment on that account.

Everything sounds good for a debtor, right? Not really. All the judgment creditor need do is domestic the Indiana judgment in the state where the judgment defendant lives now.

Partnership Gone Bad

Here is a situation that would give business lawyers a nightmare.

Partners open one business site and then decide to open another site. One partner stays to operate the original location and the other goes out to open the new site. The partner opening the new site drains the bank account, enters into a lease, and generally increases the business' debt without any counterbalancing profit.

What the partner who stayed with the original site does not know is that there are major problems ahead. Think Titanic and iceberg sort of problems.

So long as the other partner had the apparent authority for the lease, then both partners are on the hook.

If the other partner incurred debt for the business, then both partners are liable for the debt.

Liability here means that both partners' personal assets - as well as any partnership assets - are on the table to be taken by the partnership's creditors.

True, the partner who did not sign the lease or run up the bills can seek contribution from the other partner. I presume that the relationship has soured to the point that any contribution will only come after the one partner sues the other for payment of the debts they incurred.

Litigation between partners means that the business is in meltdown mode. The business stops functioning as source of profit. What money there is goes to lawyers.

I do not mean to imply that setting up as a corporation or a limited liability company (LLC) would have solved all the problems of the business. I mean only to say that some problems could have arisen and others would have been minimal.

Remember that if you are looking to start a business in Indiana or have business litigation, I am taking on new cases at this time.

Collections: The Debtor's Options

You get sued for money owed. What do you do next?

Answering that question depends on a few things:

1. Is the suit filed in small claims or not?
2. Can you fight the suit?
   
3. Are you working?
4. If you are working, do you have a garnishable wage?
5. Have you filed bankruptcy?
6. Will the creditor accept payments?
7. Will you be able to make your payments?

Regardless of whether the case is small claims or not, you can fight the suit. The difference lies in how you fight. If the suit was not filed in small claims, you need to read my Civil Suits - What Happens After Getting A Summons.

If you do not fight the case or lose in court, the question becomes how do you pay the judgment? Read my Collections Law: Judgment Proof - What is it? and decide if the plaintiff can use the court to get payment out of you.

If the plaintiff can garnish your wages or attach property, you need to decide on whether to make payment arrangements or file bankruptcy. If you do not have an attorney at this point, you need to get one.

When I do collections, I am leery of payment arrangements and so is almost any other collection attorney. Why? You got into this spot because you did not pay your bill. What reason is there for thinking you can make these payments now?

Virtual Chase Reviews Free Case Law Databases

You can find on Virtual Chase a review of free case law database. If you are fed up with West or Lexis-Nexis (or even Loislaw), I suggest reading this review. As with any lawyer, I have my worries about Shepardizing (or West Cite. I know I am showing my age here).

Still, I think these databases have a good use. You can do what I do with the online archive of Indiana cases from the State of Indiana - get the case, and read it for free and then go to West or Lexis-Nexis for the detailed research.

Trade Secrets Litigation: Allstate Posts Documents Online

Kansas City Business Journal pointed out a very unusual case in Allstate posts controversial documents online:

"Allstate Insurance Co., besieged by lawsuits and negative attention for what plaintiffs alleged was a claims policy that short-shrifted consumers, decided to place sensitive claims documents on the company's Web site.".

***

Allstate vigorously resisted the introduction of the documents in court without a protective order, insisting that the documents were trade secrets.

The company said in a release that it still thinks the documents are trade secrets but that it decided to release the 150,000 pages online because it wanted to dispel the "inaccurate picture" that had been painted of its claims process.

I am very curious about who made the choice to publish the documents: business side or legal side. My initial reaction, my gut reaction, was that this demolished all of Allstate's trade secrets case. That is the lawyerly reaction but further thinking put me onto the trail of an idea.

That idea simply put is that the lawyerly maneuver might injure the business and the lawyer's job is to help the business. Sometimes we see the trees and sometimes we see the forest and sometimes we do not see the forest for the trees. My original reaction was the latter. So, I say if the decision came from the legal side of Allstate then decision was pretty much brilliant.

Beware of E-Mail Carrying Pseudo-Subpoenas

Businesses or individuals need to read Law.com's Businesses Hit With E-Mail Blast of Virus-Carrying Pseudo-Subpoenas:

"Thousands of executives received e-mails on Monday purporting to be federal court subpoenas but which appear to be part of a 'phishing' scam to capture sensitive data."

This sounds like something that may be limited to a certain level of business and individual but it is not a good idea to underestimate the kind of people behind this kind of scam.

Indiana law does not allow for service of a subpoena via e-mail. I think the same can be said of federal subpoenas.

If you get one of these, call your attorney immediately and nothing else.

Civil Suits - What Happens After Getting A Summons

Or, When Do I Go to Trial?

I get asked that question too often and I thought an outline of what happens in a case as the defendant might make some good reading. I do need to say this outline applies only to cases that are not small claims cases.

You have a summons and a Complaint stuck in your door or handed to you or sent by certified mail. You have been served (think tennis for half a second here) and you are now a defendant in a civil suit. The Indiana Trial Rules have several rules on process and summonses beginning with Rule 4 and going to Rule 4.17. and What happens next?

Well, you can do nothing. Then after twenty or twenty-three days, the Plaintiff (the person suing you) can ask for a default judgment. Take a look at Indiana Consumer Lawyer Blog's very good post on default judgments Default Judgments in Indiana for more detail.

What should have been done is get a lawyer. If you did the case will go generally like this:

1. File an Answer or a motion to dismiss. No Answer can lead to a default judgment, again. If the motion to dismiss is granted, then the case is over. Here is the first method the system has for getting rid of lawsuit. You can file a counterclaim, which is a suit by the defendant against the plaintiff. Once the parties file their Answer, any counterclaims, and any replies to a counterclaim, the next step is discovery.
2. Discovery. The Complaint only gives you an outline of why you are being sued and not the facts behind the allegations. Discovery exists to get at those facts. I think discovery is probably the most expensive phase of a case. Lawyers want to know everything there is before we start a trial and we will do our best to get at that information. We can use depositions (Trial Rules 27 to 32), Interrogatories, Motion to Produce Documents, the physical and/or mental examination of persons, and requests for admissions.
3. As soon as we can all see the other side's cards, we make a decision if there is a dispute of fact and of law or only of law. If there is a dispute only of law, then a Motion for Summary Judgment gets filed which allows a judge to decide not on the facts but only on the law. Summary judgment motions are the second means of winnowing out weak cases. If the judge does not grant a Motion for Summary, then it is time for trial.
   
4. If a dispute of fact and of law exists and no settlement, then we go off for trial.

My Second Column Published

Take a look: The Law and You - Part Two - The Facts.

What is Going on With the Indiana Civil Rights Commission?

For several years, the Indiana Civil Rights Commission provided a low-cost, high quality and pretty much boredom free continuing legal education seminars. They have not done so in over a year. See the ICRC's Workshops, Conferences, and Continuing Legal Education page.

Other than missing a low-cost alternative for CLE in an area of law in which I practice, I have to wonder what the State is doing to keep their lawyers in their CLE hours. See, I noticed that most of the attendees were government lawyers.

But this also means that there ICRC hosts no workshops or conferences. Why not?

Very strange and I will attribute it to either some misguided idea of cost cutting or not getting information on their website.

Valuing Intellectual Property

The Indianapolis Business Journal's Valuing Vonnegut gives us an Indiana resource for valuing intellectual property.

"Stating such influence in monetary terms might seem like a monumental task, but there are surely many accounting firms larger than Pelligrino’s that would have loved the job. Vonnegut’s longtime attorney called Pellegrino out of the blue in November. Donald Farber, counsel with New York-based Jacob Medinger & Finnegan LLP who represents the Vonnegut estate, declined to comment for this story."

***

Pellegrino said Farber was aware of his work. The 33-year-old local entrepreneur has been building a reputation in the intellectual property valuation niche since he founded his firm in 2003. Once the CFO of Fort Wayne-based softwaremaker Logikos Inc., he struck out on his own when he saw a demand for appraisals of early-stage, high-tech firms.

His fees start at $4,000, but—depending on the complexity of a valuation job—can rise to as high as $100,000. He wouldn’t say what he’s being paid to value Vonnegut’s work.

Not all his jobs are so high-profile. Entrepreneurs use Pellegrino’s evaluations as the basis of negotiations with investors. Others find them useful for tax purposes, or in litigation. His clients have included Uni-Systems LLC, the Minneapolis-based company whose patented technology will allow the roof on the new Lucas Oil Stadium to safely retract. Two years ago, Pellegrino helped information technology trade group TechPoint successfully lobby the Indiana General Assembly for a change in tax law that allows firms to more accurately write off their investments in software.

Valuation doesn’t always establish a high price. Pellegrino said many business owners are disappointed to find their intellectual property isn’t as unique or precious as they expected. There have even been times, he said, that his appraisal established a negative value for an asset. That means it would cost money just to unload it.

Court of Appeals Dismisses Battery Case Against Teacher

Generally speaking, I do not write about criminal matters unless the defendant is a business. I made an exception when I read COA: teacher within rights in striking student from The Indiana Daily Lawyer.

Judges Patricia Riley and Melissa May agreed with the trial court in State of Indiana v. Paula J. Fettig, No. 49A02-0709-CR-807, that gym teacher Fettig was protected from prosecution because state statute gives authority to school personnel to discipline students. Citing Indiana Code Sections 20-33-8-8(b) and 20-33-8-9, Judge Riley wrote these sections state that teachers "may take any action that is reasonably necessary to carry out or to prevent an interference with an educational function that the individual supervises."

Reading the article and skimming the case, my initial reason for including this report here remains unchanged. This could easily have been a civil case as much as a criminal one. I think the reasoning for dismissing the criminal information would apply to a case for civil battery under the same fact pattern: teacher uses force in her capacity as a teacher.

Litigation: Indiana Jurisdiction Over Out of State Companies

I chucked a post on Indiana's long-arm jurisdiction when I saw COA: Court has personal jurisdiction over CIDs in yesterday's Indiana Lawyer Daily:

Indiana trial courts can assert personal jurisdiction over out-of-state companies for the purposes of enforcing an Indiana Attorney General's petition to enforce a civil investigative demand, ruled the Indiana Court of Appeals today.

***

In Everdry Marketing and Management, Inc. v. Steve Carter, Attorney General of Indiana, No. 49A02-0706-CV-452, Everdry, an Ohio corporation that provides waterproofing services for homes, had franchises operating in Fort Wayne and Indianapolis. It had not filed a Uniform Franchise Registration Application with Indiana before franchising the company. After receiving complaints about the Indiana franchises failing to honor "lifetime warranties" on Everdry's waterproofing systems, the Attorney General's office found Everdry's Web site contained a very similar warranty statement as the one that appeared in the customer's contracts. Pursuant to Indiana Code Section 4-6-3-3, the Attorney General's office issued a CID upon Everdry at its Ohio office. CIDs are a pre-litigation tool to determine whether an Indiana law has been violated and address whether a subject has certain information relevant to the investigation.

Reading the opinion, I see a rather lengthy discussion of both CID's and the jurisdiction of Indiana's courts. Worth a good look by anyone facing the issue of being from out of state and being hauled before an Indiana court.

This particular case turns on whether Everdry consented to Indiana jurisdiction because of its franchising activities in Indiana. The Court of Appeals held that it had consented to jurisdiction.

However, the Court of Appeals did not stop there. The Court of Appeals proceeded to analyze Everdry's contacts with Indiana pursuant to Indiana Trial Rule 4.4(A) and constitutional due process (for the lawyers in the crowd: International Shoe does get a mention).

Out of state franchisors need to pay attention to this case. I expect a petition to transfer to the Indiana Supreme Court and we will need to see if that court accept transfer.

My original post on this subject will be up tomorrow.

One for the Lawyers: Adam Smith, Esq. on Knowledge Management

One of my infrequent posts on knowledge management (KM) and it comes originally from the Adam Smith, Esq. Blog. The following points are from An inquiry into the economics of law firms....

"But despite the (I believe) inarguable centrality of KM to what we do, there are three enormous problems with it:"

• Too many lawyers don't understand why it's of value to them, or, more precisely, why the return they could get out of it would exceed the investment they'd have to put into it. (Never mind the threat of "giving away" your core professional asset—what you know.)
• Too many technologists and IT types don't understand how lawyers work, and end up creating shockingly powerful but essentially useless applications.
• And even the most powerful and user-friendly system requires constant care and feeding because legal learning is in a state of constant flux: In a sense, pure white ignorance beats obsolete and mistaken knowledge.
  

(By the way, the link to videos in the original post did not work for me. You can reach the videos here.)

Even those of us with an interest in knowledge management face competition for our time from the present work paying the fees that keep our offices open and all the multitude distractions of life. I put off on a wiki project on Indiana mortuary law so that I can keep up with other matters.

Which brings me to the point I think inheres in the quote above and my own situation, knowledge management requires a merging of the qualities of a technologist with a lawyer. Lawyers having no experience with technology have no means of understanding how to save and recycle work product. The quote above describes the technologist side of the problem all too well but I would add the technologists see a technology solution for everything.

The British have a better idea. They have professional support lawyers:

The PSL role may also include new firm-wide role elements such as:

• Know-how, precedents and standard forms: drafting, updating, managing and disseminating documents, setting up or dealing with online document systems.
• Research: analysing new law and practice, researching points of law or directing fee earners to appropriate sources.
• Training: organising internal lectures or seminars for trainees, solicitors groups or firm-wide. Dealing with external training, building up relationships with speakers and event-support.
• Marketing and business development: producing newsletters for clients, arranging or assisting in marketing events, arranging client seminars.
• Information technology: working on IT-specific projects such as setting up internet dealrooms, creating and updating websites, developing a firm's information/knowledge base and/or Intranet.
• Dealing with fee earner enquiries: answering queries relating to maintained information, new areas of law, and complex areas of law / specialisms.
  

We have nothing like this over here.

Employment Law: Employment Discrimination in Indiana

You think you have been discriminated against because of your race, sex, ethnicity, national origin, religion or disability. What you need to do next is contact the Indiana Civil Rights Commission.

Before the case can go to court, the case must first clear the administrative agency charged with investigating these claims. The ICRC is that agency for Indiana.

Since you are online, you can use their online complaint process here.

They have a FAQ page: Indiana Civil Rights Frequently Asked Questions

Collections Law: Judgment Proof - What is it?

Judgment proof means no one can get a debt paid through legal process.

Forget about blood from stones. Someone is judgment proof when they lack a garnishable wage, and no non-exempt property. This category includes many who think of themselves as "stones".

Indiana's property exemption statute is IC 34-55-10-2. I admit that it is hard to execute or attachment non-exempt property. The chief reason being that the dollar amounts are set at fair market value and the amount of liens found on some types of property (such as mortgages). Getting to the value of the property requires an appraisal and IC 34-55-4 gives some solace to the debtors.

With property hard to get at, garnishing wages appeals as the easiest way to collect a judgment. Indiana's statute setting out how much of one's wages are exempt from garnishment is both long and long-winded, and I quote only part of it in the following:

IC 24-4.5-5-105: Limitation on garnishment and proceedings supplemental to execution; employer's fee
(1) For the purposes of IC 24-4.5-5-101 through IC 24-4.5-5-108:

(a) "disposable earnings" means that part of the earnings of an individual, including wages, commissions, income, rents, or profits remaining after the deduction from those earnings of amounts required by law to be withheld;
(b) "garnishment" means any legal or equitable proceedings through which the earnings of an individual are required to be withheld by a garnishee, by the individual debtor, or by any other person for the payment of a judgment; and
(c) "support withholding" means that part of the earnings that are withheld from an individual for child support in accordance with the laws of this state.

(2) Except as provided in subsection (8), the maximum part of the aggregate disposable earnings of an individual for any workweek which is subjected to garnishment to enforce the payment of one (1) or more judgments against him may not exceed:

(a) twenty-five percent (25%) of his disposable earnings for that week; or
(b) the amount by which his disposable earnings for that week exceed thirty (30) times the federal minimum hourly wage prescribed by 29 U.S.C. 206(a)(1) in effect at the time the earnings are payable;

whichever is less. In the case of earnings for a pay period other than a week, the earnings shall be computed upon a multiple of the federal minimum hourly wage equivalent to thirty (30) times the federal minimum hourly wage as prescribed in this section.

Many find themselves facing a garnishment because they do have a garnishable wage. The usual response is either: 1) that means my other bills will not get paid, or 2) I will file bankruptcy. As a collections attorney, I am not necessarily concerned with either scenario but only with getting money for my client.

The only truly judgment proof debtor (and yes, there could be exceptions here) receives Social Security benefits. See my post Garnishing Social Security Benefits about that subject.

New Rule Proposed Commercial Driver's License Testing

See FR Doc E8-7070, "Commercial Driver's License Testing and Commercial Learner's Permit Standards; Proposed Rule" for the details on commenting to the proposed rule. Remember anyone can comment if they follow the procedure.

The FMLA and Indiana

I was asked a while back if in Indiana is it mandatory for an employer to pay employee while off
on medical leave through the Family Medical Leave Act (FMLA).

First, the FMLA is a federal law. Which means that it does not matter what the state law law is unless the state law provides more protection than the federal law. Guess what? Indiana has no state law comparable to the FMLA.

The federal Department of Labor has an excellent web page with FMLA information. There one will learn that the FMLA provides for unpaid leave.

Indiana Commercial Foreclosure Law Blog on Sheriff’s Sales

A shoutout to Indiana Commercial Foreclosure Law Blog and for its post, Sheriff’s Sales Of Separate Tracts: Principal’s Real Estate First, Surety’s Second:

The Keesling v. T.E.K. Partners case has produced a second appellate court opinion. I wrote about Keesling I on March 23, 2007. That post dealt with the liability of sureties (or accommodation parties) when an original obligation is materially altered. The latest opinion, decided March 6 (2008 Ind. App. LEXIS 431) (KeeslingII.pdf), discusses among other things the order (sequence) of the sheriff’s sales when there are multiple tracts to be sold. So, Keesling I discusses liability issues, and Keesling II addresses judgment enforcement-related matters. Commercial lenders may want to note Keesling II in the event they need guidance where there is more than one parcel of real estate subject to a foreclosure sale.

I gauge Indiana Commercial Foreclosure Law Blog as being more of a lawyer blog than for the general public. John Waller does a great job of keeping his blog focused and well-written. His chosen area of law is a bit outside of my own but his writing makes it interesting enough to keep an eye on what his blog.

Thoughts on Business Litigation and Attorney Fees

I had a rather unpleasant conversation with a now former client this morning. Looking back at the conversation as charitably as possible, I am again surprised by how some business clients do not realize that lawyers also are running a business.

When a client does not pay on time or not at all, this affects service to all clients. That is as true for my business as for my business clients.

Oddly enough, the conversation did not begin about fees and what turned the conversation about fees was something I said about if the client wanted to continue pursuing the matter. I mentioned a cost-benefit analysis, was shouted down and the telephone conference went downhill from there.

I believe that every client needs a cost-benefit analysis of any lawsuit. The client should know the costs that will come from the litigation and then decide if the benefits make the litigation worthwhile. Attorney fees make up only a part of those costs:

1. The time spent producing documents, answering Interrogatories, and attending depositions.
2. The upfront costs of our own depositions and paying for copies of depositions taken by the other side.
3. The time spent in court and hanging around a courthouse instead of at the business.

On an hourly basis, the attorney fees could easily exceed $6,000.00 for a simple trial that lasted only one day. The client then would need to decide if the costs were worth paying to defend a $25,000.00 claim or making a settlement offer to get rid of the nuisance.

Take a look at Two lawyers walk into a bar . . . from The Chicago Tribune for a bit more of an insight into attorney fees and law practices.

Copyfight

An interesting blog that goes a bit beyond the usual copyright blog, Copyfight :

Here we'll explore the nexus of legal rulings, Capitol Hill policy-making, technical standards development, and technological innovation that creates -- and will recreate -- the networked world as we know it. Among the topics we'll touch on: intellectual property conflicts, technical architecture and innovation, the evolution of copyright, private vs. public interests in Net policy-making, lobbying and the law, and more.

I call this cutting edge stuff, so take a look now.

Startups and Trademarks

Dilution by Blurring's Acquiring a Trademark addresses a subject that needs considering when buying and selling an existing business. The article identifies the following trademark issues as what buyers need to think about before buying a business:

1. "First, business owners should be aware of what marks they are actually buying...."
2. "Second, because trademarks are a bundle of rights similar to real or personal property, the marks may be encumbered by security agreements...."
3. "Third, business owners should be sure to get an assignment of each individual mark from the seller...."

I would make another point even more explicit: when buying a business, hire an attorney who has some knowledge of trademarks.

Consumer: The FTC Funeral Rule and Funeral Consumers Alliance

The Funeral Consumers Alliance site has information The FTC Funeral Rule. This is something every consumer ought to read. Why? The FCA says it quite well:

"The Funeral Rule, enforced by the FTC, makes it possible for you to choose only those goods and services you want or need and to pay only for those you select, whether you are making arrangements when a death occurs or in advance. The Rule allows you to compare prices among funeral homes, and makes it possible for you to select the funeral arrangements you want at the home you use. (The Rule does not apply to third-party sellers, such as casket and monument dealers, or to cemeteries that lack an on-site funeral home.)"

Funeral Consumers Alliance has chapters in Bloomington and Valparaiso.

My Anderson Free Press Column

I am writing a column for The Anderson Free Press. You can find the first installment here.

Online Resources - The Public Library of Law

No, I have not time to really check out The Public Library of Law but I want to note it for the lawyers reading me and for the general public.

"Searching the Web is easy. Why should searching the law be any different? That's why Fastcase has created the Public Library of Law -- to make it easy to find the law online. PLoL is the largest free law library in the world, because we assemble law available for free scattered across many different sites -- all in one place. PLoL is the best starting place to find law on the Web."

For the lawyers, we need to recognize this as a trend that has been around for a while on the Internet and may finally be taking a solid shape. The Bluebook has a citation form for online materials. Whether or not this affects West or not is a good question. It may make its headnotes even more valuable. It also raises questions for me about Shepardizing.

For the non-lawyers, finding the law is only half the trick and maybe even only a quarter. The remainder consists of verifying a case as good law and then using it in a Brief or an argument.

For both: I suggest (and I am far from being original here) using online resources like this for raw research and then using West or Lexis for further research. That is find the possible cases for free and then go to West to make sure that the case is good law.

Online Resources: ADAWatch.org

What I think of the federal Americans with Disabilities Act will probably disappoint everyone. That I think the ADA serves a good purpose will annoy employers. That I also think that the ADA does little to help those facing employment discrimination will upset its advocates. My reasoning is that the United Supreme Court eviscerated the ADA many years ago and nothing has been done to fix it. Which is the reason I no longer take on plaintiff's work under the ADA.

Nevertheless, I see the ADA as aiding people who want to work against irrational employers (and what is discrimination but irrationality when faced with a capable and willing employee that one does not want to hire because of a disability?). Which is why I want to mention ADAWatch.org:

ADA Watch is a project of the National Coalition for Disability Rights (NCDR), a nonprofit alliance of hundreds of disability, civil rights, and social justice organizations united to defend and strengthen disability rights.

Indiana Appellate Cases: Third Party Interfering With Contracts

On March 20th, the Indiana Court of Appeals handed down its opinion in Allison v. Union Hospital (PDF format) that dealt with tortious interference with contractual relationship against Union Hospital and Wabash Valley Anesthesia, P.C. (the other appellee) and constructive fraud and breach of the duty of good faith and fair dealing against Union.

Allison (and Safford, the other appellant) lost on both claims at the trial court level and had a split decision with the Court of Appeals. The Court of Appeals reversed the trial court on the tortious interference claim but upheld the other claims.

The opinion contains a refresher on the tort's elements:

A plaintiff alleging tortious interference with a contractual relationship must establish five elements: (I) the existence of a valid and enforceable contract: (2) the defendant's knowledge of the existence of the contract; (3) the defendant's intentional inducement of the breach of the contract; (4) the absence of justification; and (5) damages resulting from the defendant's wrongful inducement of the breach. (citation omitted).

This case focuses on the justification element. The Indiana Supreme Court has set out the following factors for judging whether or not the defendant acted with justification:

(a) the nature of the defendant's conduct;
(b) the defendant's motive;
(c) the interests of the plaintiff with which the defendant's conduct interferes;
(d) the interests sought to be advanced by the defendant;
(e) the social interests in protecting the freedom of action of the defendant and the contractual interests of the plaintiff;
(f) the proximate or remoteness of the defendant's conduct to the interference: and
(g) the relations between the parties.

The Indiana Court of Appeals proceeded to evaluate the facts of the case against these guidelines. It then made the following decision:

In weighing all of these factors, we find this to be a very close call. And as noted above, the ultimate question relating to the justification of the defendant's conduct is whether that conduct has been fair and reasonable under the circurnstances. We find this inquiry to he so highly- fact sensitive that we conclude it is best answered by a factfinder. Although it is possible that under certain circumstances this question may lie answered as a matter of law-and, indeed, we make just such a finding with respect to WVA below- we do not find that to be the case with respect to Union, based primarily on its conduct with respect to the without cause termination provision....

I must say this case has some unusual features - Union Hospital admitted entering into a contract it had no intention of honoring - which probably helped lead to the decision for a remand for trial rather a decision as a matter of law.

Having confronted several of these tortious interference cases, my thought is that the lack of justification element is generally the make or break element. If the case is a good tortious interference case, then the other elements ought to be readily apparent with an appropriate support of the evidence. (For example, last week a client wrote me about what would appear a good tortious interference case except there was no interference - the clients were not impressed by the attempted interference.) With this opinion, Indiana has a very a good explanation of when a third party lacks justification for its interference.

10 Management Lessons - Beyond.com

I am passing along Beyond.com's 10 Management Lessons both as a good collection of business tips and as an indirect means of preventing some and perhaps many legal problems. For instance, I have this (and a few others) particularly in mind as aiding in preventing legal problems:

Show respect. Treat people, including your customers, suppliers, partners, and employees, with respect at all times.

Business' Top Ten Legal Mistakes

From 2003 and the Harvard Business School comes the article Top Ten Legal Mistakes Made by Entrepreneurs. Good points in the article even if all will not apply to all small businesses.

"'While the language of the law can be intimidating, the concepts are usually quite straightforward,' she says. 'Lawyers tend to be risk averse, and if you delegate to them you will usually stay out of legal trouble but can often compromise your business objectives. My goal for the course—and for the coaching I give entrepreneurs—is to give them sufficient comfort with the legal concepts to feel confident in driving the process, to understand the ways in which the law is a constraint, but also the ways in which it is a tool that can help you create and capture value.'"

I agree with the description of lawyers as risk averse - our job is to protect our client's best interests - but I disagree with the verb "delegate". As a business owner you ask what are the risks, I give you the risks, and then we perform a cost-benefit analysis. The lawyer's job should then become working to minimize the legal risks.

Indiana Employment Law: What is an Employee?

The Indiana Court of Appeals answered that question in Snell v. C. J. Jenkins Enterprises, Inc. (PDF format) on March10.

Snell sued the company as its employee under Indiana's Wage Payment Statute, Indiana's Wage Claims Statute, and Indiana's Wage Deduction Statute. Snell appealed after losing at the trial court level. He lost at the appellate court level, too.

The Court of Appeals based its decision on the Indiana Supreme Court ten factor test from Moberly v. Day(HTML format), 757N.E.2d 1007, 1010 (2001):

(a) the extent of control which, by the agreement. the master may exercise over
the details of the work:
(h) whether or not the one employed is engaged in a distinct occupation or
business:
(c) the kind of occupation, with reference to whether, in the locality, the work
is usually done under the direction of the employer or by- a specialist without
supervision:
(d) the skill required in the particular occupation:
(e) whether the employer or the workman supplies the instrumentalities, tools,
and the place of work for the person doing the work;
(f) the length of time for which the person is employed:
(g) the method of payment. whether by the time or by the job:
(h) whether or not the work is a part of the regular business of the employer:
(i) whether or not the parties believe they are creating the relation of master
and servant: and
(j) whether the principal is or is not in business.

Employers still think that just calling a person a subcontractor saves them problems. It does until the charade comes to an end. That end will sound a lot like a train wreck.

The Court of Appeals evaluates the facts of the case against each of these factors. That evaluation makes the case worth reading by any business owner.

For The FacebookCrowd: Friends are not Friends?

I am not really sure what to make of this article, Facebook friends not real friends: judge, from England by way of Australia's The Age but it is interesting enough.

"A British judge has made official what many of us have long suspected - that being 'Facebook friends' with someone doesn't necessarily make you their friend.

The magistrate was presiding over a harassment case in which a woman accused her former boyfriend of hounding her by sending her a "friend request" on the popular social networking site on January 21.

I think we will see more of this issue in the future.

FedEx Class Action News

Class Action Defense Blog has news of the FedEx litigation, FedEx Class Action Defense Cases–In re FedEx Ground: Indiana Federal Court Grants Class Action Treatment In 19 Labor Law Class Action Cases Alleging Misclassification Of Pickup/Delivery Driver:

"Numerous class action lawsuits were filed against FedEx Ground alleging that the company misclassified its pickup and delivery drivers as independent contractors rather than employees; the Judicial Panel on Multidistrict Litigation consolidated the class actions in the Northern District of Indiana, and the plaintiffs in the class action cases characterized as “Wave 1,” “Wave 2” and “Wave 3” moved the district court for class action certification. In re FedEx Ground Package System, Inc., Employment Prac. Litig., ___ F.Supp.2d ___ (N.D. Ind. March 25, 2008) [Slip Opn., at 1]. As the federal court summarized, these class action plaintiffs “assert that although FedEx Ground represents to its drivers that they are only partnering with FedEx Ground and will essentially own their own businesses, all FedEx Ground drivers sign the FedEx Ground Operating Agreement, which actually reserves to FedEx Ground the right to exercise pervasive control over the method, manner, and means of the drivers’ work,” id."

I once had a client working for FedEx. I had an opportunity to read his contract with FedEx. It read more like a franchise agreement - he had no property interest and almost no control over the business. This litigation has the chance for being very interesting.

International Franchising

One thing I am learning with this blog is the areas of law I need to discard. This will probably be my last post on franchising law. What drives my practice is leading me to direct more attention to other areas. I will be happy to take on any new cases from franchisors or franchisees but I will write less on the subject.

One area that I never dealt with but have had an interest in was international franchise operations. This month's Franchise World published an article on the subject,
In the international arena there is no substitute for good prior planning and judgment.

"When U.S. franchisors structure international franchise arrangements, they too often take the domestic approach that they are accustomed to, only to later realize that the rules change and that engaging in disputes in foreign adversarial proceedings can be substantially more difficult, expensive and time consuming than the domestic judicial battles to which they are accustomed. Many franchisors find that a domestic kitchen-sink approach to drafting international franchise agreements is frequently a “turn off” to prospective international franchisees. In many cases, broad inclusion of standard domestic requirements appropriate for a domestic arrangement could be characterized as a knee-jerk response, wholly inappropriate for an international transaction setting the arrangement up for immediate confrontation or failure, simply due to lack of forethought. For example, provisions governing events of default that subject the franchisee to automatic termination without notice, mandatory contributions to advertising funds, mandatory accounting reviews, certain concepts of equity and even jury trials are not always appropriate for inclusion in international franchise agreements. Such forced inclusions by the franchisor are often an initial recipe for disaster."

Funeral Industry Blogs

Two.

I categorize the first as a consumer oriented blog: R.Brian Burkhardt "YourFuneralGuy & Author "Rest in Peace--Insider's Tips toThe Low Cost Less Stress Funeral"'s Amazon Blog.

The second comes from a lawyer, Death Care Compliance Law. I really like this one - it has a national viewpoint and the writer seems more familiar with funeral homes than most lawyers.

Mortgage, Refinance Advice | Truthful Lending dot Com

I do not know much about Truthful Lending dot Com but so I offer its Mortgage, Refinance Advice without any endorsement:

"Irvine, California - At Truthful Lending dot Com we believe that the more educated you are about the mortgage and refinance process, the more likely you are to make the best decision. That's why we have a library of mortgage and refinance articles for you to read so that there are no surprises during the loan process and so that you can protect yourself against unscrupulous mortgage and refinance practices."