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Wednesday, June 28, 2017

What is Strict Product Liability ?

What is Strict Product Liability ? 

 If an individual is harmed by a purchased device or product, damages may be recovered under strict product liability. The plaintiff, however, must be able to prove several things in order to prevail in suit against a distributor, manufacturer, or retailer. Generally, the product must have been “in an unreasonably dangerous condition” at the time of sale and intended to reach the consumer without any alteration.  Moreover, the injury suffered must be a direct result of the flawed product itself. 

Defects are not all created equal.  A plaintiff may bring a cause of action for either a manufacturing or design defect.  Generally speaking, in cases involving a  “manufacturing defect” only some products in the line of distribution will have been affected. The defect, for example, may have resulted from a malfunction in factory production. A design defect, on the other hand, which is integral to the product's structure, usually affects the entire line of the inventory, making each device dangerously defective.

Product liability can also be proven if a manufacturer does not provide adequate warning regarding a product's use. If the risk posed to the consumer is not patently obvious, the manufacturer is required to provide an understandable notice of warning to the customer. For an injured individual to win such a case, his or her injury must have resulted from the lack of warning or direction that could have prevented the injury sustained. 

If a plaintiff's injury results from that person's misuse of the product or his or her own negligence, that individual cannot prevail under the theory that the design or manufacture of the product was defective.

If an individual has been injured by a defective product, or because there was no evident warning of some dangerous aspect of the product's assemblage or use, a case of product liability may be brought. When considering whether to file a product liability lawsuit, an attorney specializing in the field should be consulted to assess whether the injured party has a viable case.


Monday, June 19, 2017

Why Your Business Needs an Email Policy

Why Your Business Needs an Email Policy

In the contemporary workplace, email is an essential and efficient form of communication. Whether it's used internally among staff members, or for exchanges with vendors and customers, email is a necessary business tool. At the same time, misuse of this technology can expose an organization to legal and reputational risks as well as security breaches. For this reason, it is crucial to put a formal email policy in place.

First, an email policy should clarify whether you intend to monitor email usage. It is also necessary to establish what is acceptable use of the system, whether personal emails are permissible, and the type of content that is appropriate. In this regard, the policy should prohibit any communication that may be  considered harassment or discrimination such as lewd or racist jokes. In addition, the email policy should expressly state how confidential information should be shared in order to protect the business' intellectual property.

By having employees read and sign the email policy, a business can protect itself from liability if a message with inappropriate content is transmitted. Further, it personal emails are not permitted, employees are more likely to conduct themselves in a professional manner. Because personal emails tend to be more informal and unprofessional, these messages pose a risk to the company's image if they are accidentally sent to customers. Lastly, email that is used for non-business reasons is a distraction that can adversely affect productivity.

The Takeaway

In order for a policy to be effective, it is necessary to provide training to all the employees, enforce it consistently and implement a monitoring system to detect misuse of the email system. Ultimately, establishing formal email policy and providing it to all employees will ensure a business remains productive and efficient. If an employee violates the policy, a company will also have the ability to take disciplinary action. Lastly, a well designed policy will ensure the company's image and brand is protected.


Thursday, June 8, 2017

What is Elder Law ?

What is Elder Law?

As the population grows older, many elders must face the difficult challenges of aging, such as declining health, long-term care planning, asset protection and other financial concerns. The practice of elder law is designed to assist seniors with meeting these challenges and give them peace of mind knowing that they will age with dignity.

Long-term Care Planning

The escalating costs of long-term care, including services for both medical and non-medical needs, is a daunting challenge for elders and their loved ones. In some cases, elders may need non-skilled care to assist with daily tasks of living such as dressing, feeding, shopping, and light housekeeping. Alternatively, some elders may require skilled nursing care whether provided at home, or in an assisted living facility or nursing home.

By failing to adequately plan for these needs, the cost of long-term care can easily deplete an elder's savings. A skilled elder law attorney can help explore options such as long-term care insurance, selecting the best skilled nursing facility or qualifying for public benefits such as Social Security and Medicaid.

Medicaid Planning

One option to cover the costs of long-term care is Medicaid, a federal program run by the states that provides medical assistance to low-income individuals, and those who are 65 or older. However, many elders may not qualify because their financial resources exceed the eligibility threshold. One way to protect your home and your assets is by establishing an irrevocable trust known as a Medicaid Trust.

Elder Abuse

Elder abuse, whether physical, or emotional, has been called the crime of the twenty-first century. In addition, financial abuse occurs when an individual takes an elder's property for a wrongful purposes or with intent to defraud. In these situations, an elder law attorney can serve as a dedicated advocate and protect a senior's rights.

Ultimately, an experienced and compassionate attorney can help elders plan for the challenges of aging, preserve their independence, protect their assets and enable them to enjoy their golden years .


Sunday, May 28, 2017

What Should I Do If A Creditor Violates the Bankruptcy Automatic Stay ?

What should I do if a creditor violates the automatic stay?

Immediately upon the filing of a Bankruptcy petition, a petitioner is granted the protection of an automatic stay. This means that creditors must cease all collection activity, including repossession, garnishment, law suits, phone calls, letters, or any other attempts to collect on the debt. If they fail to do so, they are in violation of the stay.

If a creditor attempts to collect a debt after the filing of a Bankruptcy petition, the Petitioner should let the creditor know that a claim has been filed. It may have been an honest error and the creditor may stop attempts to collect and correct any actions taken after being told that a bankruptcy was filed. Even though creditors receive notice of the stay when a Bankruptcy Petition is filed, the court will often forgive a violation due to a clerical error if the creditor immediately ceases all collection activity and corrects the mistake.

If collection efforts continue, a petitioner may request relief from the Bankruptcy Court. If the Court finds that the collection action was willful, it will sanction the creditor for violating the stay. The violation will be considered willful if: (1) the stay was actually in effect and was actually violated, (2) the creditor knew of the case and failed to correct its actions immediately after learning of the Bankruptcy case, and (3) the collector meant to act. For example, if a creditor repossesses a consumer’s car after a Bankruptcy Petition has been filed, and that creditor does not immediately return the car, upon learning of the mistake, the Court would return the car to the Petitioner, and the creditor can be held in contempt of court and made to pay fines, attorney’s fees, and damages to the petitioner.

A violation of the automatic stay may also be violation of state and federal Fair Debt Collection Practices acts which heavily regulate the behavior of debt collectors. To pursue relief under one of these statutes, a consumer must file a separate law suit outside of the Bankruptcy proceeding. Nevertheless, it is an additional means provided to enforce the protections of the automatic stay.


Thursday, May 18, 2017

Overview of Foundational Corporate Documents

An Overview of Foundational Corporate Documents

There are a number of steps involved in forming a corporation from selecting a name, obtaining the necessary licenses and permits, paying certain fees, and filing foundational documents with the appropriate state agency. While an attorney can help prepare and file the required papers, the owners, officer and directors should have a basic understanding of these documents.

Articles of Incorporation

The first underlying document is the Articles of Incorporation which states the corporate name, and the  purpose of the business. This is typically a generic statement to the effect that the corporation will conduct any lawful business in the state in accordance with its objectives.  In addition, the type and amount of stock that will be issued (common or preferred) must be established. This document should contain any other pertinent information, including the name and address of a registered agent.

Corporate By-laws

By-laws are the formal rules regarding the day-today operations of a corporation. This document outlines the corporate structure and establishes the rights and powers of the shareholders, officers and directors. By-laws specify how officers and directors are nominated and elected as well as their responsibilities. In addition this document should clarify how disputes among the parties will be resolved. By-laws establish where and when meetings will be held, whether quarterly, annually or at other times, what constitutes a quorum, as well as voting and proxy rules. Lastly, this document should also contain information on the issuance of shares of stock and other operational details.

Meeting Minutes

After the corporate existence has begun, an initial organizational meeting of the principals must be held in order to adopt by-laws, elect directors, issue stock, and to conduct any other business. All of these activities must be memorialized in meeting minutes, which must also be prepared during any subsequent meetings.

Stock Certificates

Stock certificates are the record of any stock that was initially issued.

Once these foundational documents are in place, a corporation is also required to keep complete and accurate books and records of account and must maintain a record containing the names and addresses of all shareholders. All of these documents may fall under different names and the applicable laws vary from state to state. Because this is a complicated process and one that requires careful analysis, you are well advised to engage the services of an experienced business law attorney to help prepare and file the necessary foundational documents.


Monday, May 8, 2017

Do I Need An Attorney If I Am Buying A Home ?

Do I need an attorney if I am buying a home?

Buying a home can be an exciting experience, but the process can be complicated. While some homebuyers may think hiring an attorney will be too expensive, not having proper legal representation can be even more costly. Although real estate agents typically bring buyers and sellers together, a highly skilled attorney can perform critical due diligence, anticipate problems, and be your advocate at the closing table.

It's often been said that real estate is all about the price and "location, location, location," but there are a number of factors to consider such as purchase and sales contracts, home inspections, title issues as well as arranging for financing. An experienced real estate attorney who knows the local housing market can help a buyer navigate these issues and protect his or her investment.

Once a buyer selects a home, it is crucial to have an attorney review or prepare a contract of sale. In short, a contract must adhere to all state and local laws, address issues about the use of the property, and specify the rights and obligations of each party. In some states, the buyer and seller have a limited time to review the contract before it becomes legally binding.

In addition to price and location, it is essential for the structure of the dwelling and its heating, cooling and electrical systems to be in good condition. An attorney can coordinate a home inspection to ensure that any defects are repaired prior to the closing or arrange to have the seller reimburse the borrower from the proceeds of the sale.

In some cases, an attorney can also perform a title search to verify that property is being sold free of any liens, judgments or other encumbrances. If outstanding items need to be paid before the deal closes, there can be costly delays, especially for buyers who are simultaneously selling an existing home. Lastly, after the closing, the deed must be filed in the county in which the property is located, which can easily be handled by an attorney.

Ultimately an attorney can protect a homebuyer's interests, anticipate and resolve problems and help to avoid conflicts. Because buying a home is the largest financial transaction that many individuals will ever undertake, the role of an attorney cannot be underestimated.


Friday, April 28, 2017

End-of-Life Medical Decisions

Making Decisions About End of Life Medical Treatment

While advances in medicine allow people to live longer, questions are often raised about life-sustaining treatment terminally ill patients may or may not want to receive. Those who fail to formally declare these wishes in writing to family members and medical professionals run the risk of having the courts make these decisions.

For this reason, it is essential to put in place advance medical directives to ensure that an individual's preferences for end of life medical care are respected. There are two documents designed for these purposes, a Do Not Resuscitate Order (DNR) and a Physician Order for Life Sustaining Treatment (POLST).

What is a DNR?

A Do Not Resuscitate Oder alerts doctors, nurses and emergency personnel that cardiopulmonary resuscitation (CPR) should not be used to keep a person alive in case of a medical emergency. A DNR is frequently used along with other advance medical directives by those who are critically ill and prefer not to receive life sustaining treatment.

What is a Physician Order for Life Sustaining Treatment (POLST)?

A Physician Order for Life Sustaining Treatment is similar to a DNR,  however a POLST is prepared by a patient's doctor after discussing end of life treatment options. This is not a legal document prepared by an attorney, but rather a binding doctor's order that is kept with a patient's medical records. A POLST declares a patient's preference for receiving certain life sustaining treatments, as well as treatment options the patient does not want to receive or to be continued.

Examples of these treatments include, but are not limited to, artificial nutrition and hydration, intubation and antibiotic use. These decisions should be made when there is no medical crisis that can affect an individual's decision making, after various treatment options have been discussed with his or her doctor. In short, a POLST ensures that a patient will receive appropriate treatments, but not be subjected to life sustaining measures the patient does not want.

By having these advance medical directives in place, a person can have peace of mind knowing that he or she will receive end of life treatment according to his or her wishes, and loved ones will not be forced to go to court to obtain the right make these decisions.

 


Thursday, April 20, 2017

Own a business with a spouse? What happens after a divorce ?

Own a Business with a Spouse ?  What happens after a divorce ? 

 Given that this situation encompasses various areas of law, you should consult both a matrimonial and a business law attorney. Depending upon the type of business the division between you and your soon-to-be ex-wife may be straightforward. However, more than likely, it may take significant work to be able to divide the business. If you and your wife intend to continue to own and/or operate the business together, you could simply divide the ownership between the two of you.

Otherwise, the two of you have to continue to work together until the business is actually sold or dissolved. If the business is such that it has two distinct areas you could spin off one of those into a separate entity that can be owned by one of you.  If the business owns real estate, perhaps some of the real estate could be transferred into a new entity to be owned by one of you with the other of you retaining the ownership of the original entity. If the business is such that it is almost impossible to divide, then perhaps one of you becomes the sole owner of the business and has to pay the other over some period of time for the value of one half of that business. Instead of paying the other of you perhaps an outside loan from a bank or other lending institution could be obtained to provide the funding for the purchase price.

A final option may be that the business has to be sold to an outside third party and the proceeds would be divided between you and your wife in accordance with any agreement between the two of you that have been approved by the divorce court or pursuant to an order.


Monday, April 10, 2017

Insurance Bad Faith

Insurance Bad Faith

If you or a loved one is injured in an accident you may be entitled to compensation which usually means dealing with an insurance company. Although insurers have an advantage because they have teams of attorneys and experts, the law requires insurance companies to treat claimants and policyholders fairly. While there may be legitimate reasons to deny a claim, an insurer that fails to engage in good faith and fair dealing may be held liable for bad faith.

What is bad faith?

Bad faith is a legal term for an insurer denying a claim without a reasonable basis. In first party insurance situations, bad faith arises when an insurance company denies a claim without a valid reason. In third party insurance situations, bad faith occurs when an insurer fails to defend or indemnify the policyholder without a valid reason.

Proving bad faith varies from state to state. In some states, it is necessary to show that the insurer failed to conduct a thorough investigation. Other states have a higher a higher threshold that requires proving the insurance company missed or ignored obvious facts or information in denying a claim. A stricter standard that some states rely on requires demonstrating an insurer intentionally conducted an inadequate investigation.

Generally, it is not necessary to demonstrate that the insurer denied a claim merely to advance its interest at the expense of the claimant. On the other hand, an insurance company that makes a mistake or error in denying a claim cannot be held liable for bad faith. Lastly, an insurer that is shown to follow a pattern or practice of not adhering to state regulations governing claims investigation can be held liable for bad faith.

What can I do if I have been the victim of bad faith?

If you have been the victim of bad faith on the part of an insurance company you have options. By engaging the services of an experienced insurance law attorney, you may be able to recover damages from the insurance company. These damages include the amount the insurance company should have paid out for the initial claim, as well as additional damages arising from the bad faith denial.


Thursday, March 30, 2017

Employment Contracts in a Nutshell

Employment Contracts in a Nutshell

The contemporary workplace has become increasingly complicated as many businesses are governed by a wide range of state and federal employment laws. Moreover, the relationship between employers and employees has also become more complex, particularly as the work force becomes more diverse. For this reason, business owners should consider utilizing employment contracts to clarify these associations.

While such agreements may not be necessary across the board, they are well suited for executives, sales people, or those who have either a decision making role or an ownership interest in the business. As such, the first element of a comprehensive employment contract is a description of the employee's duties and the duration of employment.

Obviously, an employment contract should specify the salary that is being paid as well as any work-related benefits: bonuses, vacation pay, health insurance, expense accounts, stock options and retirement plans. The contract should also clarify whether the employee is working at will and the grounds for termination. It is important to note that an employee who is fired for reasons not stated in the agreement may have grounds for a wrongful termination lawsuit.

Depending on the nature of the business, it is also necessary to protect sensitive information with confidentiality provisions. In particular, it is crucial to protect trade secrets, such as formulas, designs, practices, client lists or any other information that is generally not known to the public. Moreover, employees should be notified that all work product is owned by the business. Similarly, if the entity has relationships with independent contractors or freelancers, it is important to clarify that anything they produce is on a work-for-hire basis.

In addition to confidentiality provisions, it may also be necessary to include a non-compete clause clarifying that an employee will not accept a similar job with a competitor in the geographical region for a specified period of time.

In the end, there are a number of benefits to utilizing employment contracts. In addition to helping to retain key employees and minimize the costs of training new people, employment contracts give a business control over performance standards. Further, these agreements provide protection against the potential misappropriation of trade secrets and other intellectual property. Ultimately, these agreements help to clarify the rights and obligations of both the employer and the employee. By engaging the services of an experienced employment law attorney, a business can put in place a well designed employment agreement.


Monday, March 27, 2017

Non-Disclosure Agreements

Use of Non-Disclosure Agreements

As a small business owner, it is essential to protect sensitive information that is often referred to as trade secrets. While some well known examples of trade secrets include the formula for Coca-Cola and Google's algorithms, any business information such as practices and techniques, processes and procedures, needs to remain confidential. In some cases, business data such as client and vendor lists may qualify as a trade secret.

Although trade secrets and other confidential business information are protected by state and federal laws, it is crucial to secure this information through the use of a confidentiality or non-disclosure agreement. In sum, this is a legal contract between two or more parties in which the party receiving the sensitive information agrees not to reveal it to any other party without prior permission or authorization.

In situations in which a business engages with vendors or enters into a strategic alliance with a similar business, a separate, stand-alone agreement can be used. Similarly, confidentiality provisions can be incorporated into an employment agreement for employees who are given access to sensitive business information. In either case, common provisions included in these agreements include:

  • A definition of the confidential information (but usually not the protected information itself)

  • An explanation as to why the information is being provided to the receiving party

  • Terms under which the information may be disclosed to appropriate parties (such as on a need-to-know basis)

  • The circumstances in which the information may or not be used

  • The duration of time  the information must be kept confidential

In order for a non-disclosure agreement to be enforceable, it must be deemed fair. A court typically looks to whether an agreement is overly restrictive in making a determination of fairness. If the contract is unduly burdensome to the party receiving the information, a court may find all or part of the agreement invalid. If the information has already been revealed to a third party and the agreement is deemed to be invalid, a business may be barred from recovering damages for its losses. For this reason, it is crucial to consult with an experienced business law attorney who can help to prepare a well designed non-disclosure or confidentiality agreement.

 


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