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Monday, July 20, 2015

Commercial Lease Disputes

Commercial Lease Disputes

Sometimes a business grows more rapidly than expected and its leased space is no longer large enough. Other times a business finds itself losing money and unable to pay rent. In those instances, it is the commercial tenant that desires to break its lease. There are times, however, when a commercial landlord seeks to break a lease and even threatens eviction for reasons that may lack merit.

A commercial lease is basically a contract that establishes a relationship between the parties and outlines the respective rights and obligations of each. These documents can be confusing and complex. Resolving a commercial lease dispute often involves business, contract and real estate laws.

Unlike residential leases, where the law heavily favors tenants, in the commercial world, the law tends to be more even-handed. The terms of the lease (even if all you have is an oral agreement) are most often going to be what governs the outcome of the dispute. This reflects the view that both parties involved in commercial lease agreements are sophisticated business entities that can protect their interests.

Since the terms of the lease are most likely going to govern if you file a lawsuit and take your dispute to court, it is essential that anyone evaluating your case examines your lease in depth. Even if an out-of-court settlement is negotiated, familiarity with your particular lease agreement is crucial for anyone advising you. Many commercial leases contain a dispute resolution clause that might require mediation or arbitration. These options can often lead to a resolution in less time and with less expense than traditional litigation.

Assessing damages and amassing the means to prove those damages is another important component to handling a commercial lease dispute. Typically, monetary damages are sought. There might be a clause in the lease regarding attorneys' fees. Again, it is vital that a competent and informed review of your particular lease is made to properly guide your case.

Contact an experienced business law attorney today to discuss your commercial lease dispute and learn what legal options are available.

 


Wednesday, July 8, 2015

Student Loans & Bankruptcy: What are the Options ?

Student Loans & Bankruptcy: What are the Options?

I am drowning in student loan debt. Is this debt dischargeable in bankruptcy?

Traditionally, student loans were not considered a dischargeable debt under federal bankruptcy laws. However, as national student loan debt has skyrocketed into the trillions of dollars, struggling graduates may be able to escape the burden of four-figure monthly payments by successfully proving severe financial hardship. As well, there are a number of less common avenues through which student loan debt may be discharged, which could be a financial life-saver for those meeting eligibility criteria.

Three-prong undue hardship test

Under current consumer bankruptcy law, there is a three-part test to determine if a student loan is dischargeable based on undue hardship. First, you must prove that, if forced to repay the loan under its minimum payment terms, you would be unable to maintain a minimum standard of living. While the phrase “minimum standard of living” has not been officially defined in the bankruptcy code, it is generally considered to mean the financial ability to maintain adequate housing and meet daily needs for the borrower and his or her dependents.

Second, the borrower must show that the inability to maintain a minimum standard of living is not temporary in nature, and is likely to continue throughout the duration of the loan repayment period. Lastly, discharge may be possible if you have made a true good faith effort to repay the loan prior to filing for bankruptcy – which means a period of at least five years.

Known as the Brunner test, this three-prong analysis looks for poverty, persistence, and good faith – and may be a good option for borrowers who have tried, but are simply unable, to repay that those looming and unrelenting education debts.

Other options

As a debtor, there may be other options for avoiding student loan repayment, primarily if your alma mater  is involved in any kind of investigation for fraud or consumer deceit. In some instances, students have earned relief from some or all of their student loans by successfully highlighting their school’s false promises or exaggerated graduation/employment rates – thereby triggering a consumer protection or breach of contract action.


Monday, June 29, 2015

Umbrella Insurance: What It Is and Why You Need It

Umbrella Insurance: What It Is and Why You Need It

Lawsuits are everywhere. What happens when you are found to be at fault in an accident, and a significant judgment is entered against you? A child dives head-first into the shallow end of your swimming pool, becomes paralyzed, and needs in-home medical care for the rest of his or her lifetime. Or, you accidentally rear-end a high-income executive, whose injuries prevent him or her from returning to work. Either of these situations could easily result in judgments or settlements that far exceed the limits of your primary home or auto insurance policies. Without additional coverage, your life savings could be wiped out with the stroke of a judge’s pen.

Typical liability insurance coverage is included as part of your home or auto policy to cover an injured person’s medical expenses, rehabilitation or lost wages due to negligence on your part. The liability coverage contained in your policy also cover expenses associated with your legal defense, should you find yourself on the receiving end of a lawsuit. Once all of these expenses are added together, the total may exceed the liability limits on the home or auto insurance policy. Once insurance coverage is exhausted, your personal assets could be seized to satisfy the judgment.

However, there is an affordable option that provides you with added liability protection. Umbrella insurance is a type of liability insurance policy that provides coverage above and beyond the standard limits of your primary home, auto or other liability insurance policies. The term “umbrella” refers to the manner in which these insurance policies shield your assets more broadly than the primary insurance coverage, by covering liability claims from all policies “underneath” it, such as your primary home or auto coverage.

With an umbrella insurance policy, you can add an addition $1 million to $5 million – or more – in liability coverage to defend you in negligence actions. The umbrella coverage kicks in when the liability limits on your primary policies has been exhausted. This additional liability insurance is often relatively inexpensive in comparison to the cost of the primary insurance policies and potential for loss if the unthinkable happens.

Generally, umbrella insurance is pure liability coverage over and above your regular policies. It is typically sold in million-dollar increments. These types of policies are also broader than traditional auto or home policies, affording coverage for claims typically excluded by primary insurance policies, such as claims for defamation, false arrest or invasion of privacy.
 


Thursday, June 18, 2015

Effects of a Lay Off on an Employment-sponsored Visa

Effects of a Lay Off on an Employment-sponsored Visa

The dragging economy has been tough on immigrants. An overabundance of citizens looking for work limits the number of some types of visas, and instability in the job market limits the appeal of employment-backed visas. Many workers who have lost their jobs because of the economic slowdown have had to leave the United States in order to avoid violating the law and jeopardizing their ability to live in this country in the future. However, some immigrant workers are finding ways to stay in the United States legally despite being laid off. 

  • Find another job. This is somewhat easier said than done, but workers who are able to find new employment can often extend their visa or get a new visa. This works best if the worker knows in advance that his or her current job will soon be ending and can find a new job to start before the old job ends.

There is technically no grace period in which to find a new job when a worker’s job ends (meaning a worker is out of status as soon as they clock out for the last time), but U.S. Citizenship and Immigration Services (USCIS) often approves petitions to change from one employer to the next if the gap between jobs is 30 days or less.

If a worker is out of work, and thus out of status, for more than 30 days, he or she will probably have to leave the country and get a new visa at a United States consulate office before starting a new job.

If a worker does have to travel abroad to get a new visa, the worker’s former employer may be required to pay for the worker’s trip home. Whether the employer is required to pay depends on when and how the worker’s job was terminated.

  • Become a dependent. If a worker in the United States on an employment-backed visa loses his or her job, one of the easiest ways to stay in status and prevent deportation is to become the dependent of someone who has legal status. Obviously, this only works if family circumstances allow.

 

It is important to note that if, for any reason, the worker's family member loses his or her legal status, then the worker who has become that person's dependent will lose his or her status as well.

 

  • Go to school. Workers who lose their jobs may have their status changed to student (F-1 status) if they are accepted into a full-time program at a college or university.

The further in advance a worker knows his or her job is in jeopardy, the easier it is to find a solution that will allow him or her to stay in the country legally. However, it is never too late to contact an experienced immigration attorney.


Monday, June 8, 2015

10 Things to Bring to Your First Meeting with Your Attorney

10 Things to Bring to Your First Meeting With Your Attorney

Hiring an attorney is not something most people do every day, so being a little bit unsure of how things are going to go is perfectly normal. To help ease some of the stress and make the process go more smoothly, take time to compile and bring the following list of items with you to your first meeting.

  1. A list of all your contact information. Your lawyer is going to need to know your full legal name and any other names you go by, your address, phone number(s), and email address.

  2. The names and contact information of other people that might get involved with the case - people on the other side, people on your side, witnesses, doctors, police, insurance agents, etc.  If a case has already been filed against you, the name(s) and contact information of the lawyer(s) representing the other side will also be needed.

  3. A typed up or written down account of the circumstances surrounding the situation that is causing you to seek legal help. Try to make your summary of events as detailed as possible. If writing or typing isn’t one of your strengths, try creating an audio recording.

  4. A timeline of events. The best way to do this is to buy a calendar, write all the important events on it, and bring it to the meeting with you.

  5. Any materials (including documents, digital files and photos) you have that relate to your legal matter. If possible, put the documents in an order that makes sense when paired with the summary of events and timeline you put together above.

  6. A list of information (particularly documents) you wish you had or thought you had but can’t seem to find now.

  7. The truth. You don’t have to swear to tell the truth, the whole truth, and nothing but the truth unless you are taking the witness stand in the courtroom, but lying to your attorney will not help your case. 

  8. Bring a good idea of what you hope to get out of the case. Think about what winning looks like to you. It is difficult for your attorney to figure out how best to help you if they don’t know what you want. 

  9. An open mind paired with a good sense of what your gut is telling you. Your lawyer may suggest a solution that you would never have imagined, or let you know that you don’t have a case. Listen to what they tell you, but don’t be afraid to share your thoughts on their suggestions.

  10. A list of any questions you have. The meeting will be far more productive if you leave without nagging questions or lingering doubts.

Thursday, May 28, 2015

Is Mediation Right for Your Case ?

Mediation: Is It Right For You?

Mediation is one form of alternative dispute resolution (ADR) that allows parties to seek a remedy for their conflict without a court trial. Parties work with a mediator, who is a neutral third party. Usually, mediators have received some training in negotiation or their professional background provides that practical experience.

Unlike a judge, a mediator does not decide who wins; rather, a mediator facilitates communication between the parties and helps identify issues and solutions. The goal is for parties to reach an acceptable agreement.

Mediation can be an appealing option because it is less adversarial. This might be important when the relationship between the parties has to continue in the future, such as between a divorcing couple with children. The process is also less formal than court proceedings.

Mediation often costs less than litigation, which is another benefit. Another advantage to using mediation is that it generally takes much less time than a traditional lawsuit. Litigation can drag on for years, but mediation can typically be completed within a few months. Court systems are embracing mediation and other forms of ADR in an effort to clear their clogged dockets. There are some programs that are voluntary, but in some jurisdictions, pursuing ADR is a mandatory step before a lawsuit can proceed.

Mediation can be used in a variety of cases, and it is sometimes required by a contract between the parties. Mediators can be found through referrals from courts or bar associations, and there are companies that specifically provide ADR services. Ideally, a mediator will have some training or background in the area of law related to your dispute.

Mediation is often a successful way to reach a settlement. If parties fail to resolve their conflict, information learned during mediation might be protected as confidential under state law.

Contact our firm today to help determine if mediation would be a valuable tool to resolve your case.


Monday, May 18, 2015

Who Own's a Company's Customer List ?

Who Owns A Business's Customer List?

 

Many businesses have customer lists that they consider their own private property.  It is common, however, for sales representatives and other employees to regard customer lists as theirs too, something they can take to a new employer. 

 

Employment agreements, confidentiality agreements, non-competes, and non-solicitation agreements can all be used to eliminate confusion over whether a customer list is transferable or not. 

 

In the absence of clear contractual protections, however, case law and state "trade secret" statutes may decide whether a list is the exclusive property of a business.  If the list is a "trade secret," a business owner may have an easier time protecting it and obtaining damages for its use by ex-employees and competitors.  47 states have adopted some version of the Uniform Trade Secrets Act, which provides for penalties and remedies for the misappropriation of trade secrets.

 

When is a list a trade secret?

 

Generally, a list receives "trade secret" protection if, first, it contains information not readily ascertainable from public sources.  Merely listing customers and general contact information is usually not enough to elevate the information to trade secret status.  Second, owners must usually take some measures to keep the information confidential.

 

What steps can a company take to ensure that a list is viewed as a trade secret?

 

The following are elements which, when present, can lead to a customer list being deemed a trade secret.

 

• The list contains unique, non-public information about each customer, such as ordering history, needs and preferences, and private phone numbers and e-mail addresses.  The more a customer list contains valuable details painstakingly compiled about each customer, the less likely a court is to say that the list could have been readily assembled from public sources. 

 

•  The list is marked "private" or "confidential," and employees are informed that it the property of the company. 

 

• Electronic versions of the list are password-protected, and access is limited to certain users.

 

• Printed copies are kept under lock and key.

 

• When the list is shared with third parties, there is a confidentiality agreement.

 

• The owner can show that time and effort were invested in building and maintaining the list.

 

A recent case involving former employees of an insurance company shows how these factors can influence a court.  In that case, the customer list contained more than just customer names, birthdates and drivers' license numbers.  It also contained laboriously compiled information about the amounts and types of insurance each customer had bought, the location of insured property, the personal history of policyholders, policy termination and renewal dates, and other potentially valuable details.  The list conferred a powerful, competitive advantage and the court deemed it a "trade secret."

 

Meeting the criteria spelled out in that case and in the suggestions above does not guarantee that a customer list will be deemed a protected trade secret.  It could, nonetheless, increase the odds.


Friday, May 8, 2015

Confidential Settlements

Confidential Settlements

The vast majority of significant personal injury settlement offers come with a catch – the defendant wants a confidentiality clause included in the settlement agreement, barring the plaintiff and his or her attorneys from publicly discussing the facts of the case or terms of the settlement.In exchange for keeping their “mouths shut”, plaintiffs often benefit by obtaining higher compensation.  In many circumstances, the plaintiffs also have a preference for maintaining their own privacy.

Why do the defendants’ attorneys routinely insist on confidentiality clauses in their settlement agreements? Typically, defendants – and their attorneys – want to prevent evidence, such as witnesses or documents, from being accessible to future plaintiffs. In the grand scheme of things, this makes the defendant less accountable for its conduct.

Arguably, our legal system and the overall population would benefit from an outright rejection of confidential settlement agreements. Yet, most plaintiffs’ lawyers quickly capitulate; a settlement in hand is a sure thing, prevents future expenses necessary to bring a case to trial, and avoids the uncertainty regarding how much a jury might award in damages. Plaintiffs typically agree to maintain secrecy, as well. Seriously injured victims and their family members may be struggling financially and emotionally, and have a strong desire to put the matter behind them. It is understandable that they focus on their own needs and recovery, rather than how it may impact future plaintiffs’ or the public’s access to information and evidence.

Some attorneys and ethicists believe that lawyers’ rules of professional conduct provide them with sufficient grounds to reject secrecy clauses. Most states’ ethical rules favor enabling the public to have a realistic understanding of which attorneys have expertise in cases involving certain circumstances or against particular defendants.

However, those same rules of professional conduct also require attorneys to act in the best interests of the client – which often means agreeing to a speedy or generous settlement offer. Some legal ethicists suggest addressing confidentiality upfront, at the beginning of settlement negotiations. However, this approach may reduce the amount of a future settlement offer, or cause the defendant to take settlement off the table entirely. This risk, too, must be discussed with and agreed to by the client.

Furthermore, in this type of situation, the risk is borne by the plaintiff but the benefits are only realized by the general public, as mentioned above, or the lawyer who later enjoys “bragging rights” when he would otherwise be muzzled. It can be a tough sell, and one fraught with its own ethical implications. In the end, only the client can decide what is best for his or her situation. Some will agree to the risk “for the greater good” while others must do what is best for them and their families.
 


Thursday, April 30, 2015

What is a Surety Bond ?

What is a Surety Bond?

 

A "surety bond" is a legal tool used to guarantee that a promise will be kept.  It ensures that contractual requirements will be met and work will be done according to specifications.  If they are not, the bond will cover some or all of the damages that result.

 

The "surety bond" commits three parties to a binding contract. 

 

First, there is the "principal," the contractor, business or individual purchasing the "surety bond" as a way to assure others that work will be done as agreed.

 

Second, there is the "obligee," the party seeking assurance that the "principal" will fully complete the task.  Obligees are sometimes government agencies putting out bids, or any company or institution trying to be certain that it does not suffer financial loss at the hands of a contractor.

 

Third, there is the "surety," often an insurance company, which backs the bond and makes payment to the obligee in the event that the principal fails to meet its responsibilities.

 

How Does a Surety Bond Work?

 

A contractor  (the principal) usually pays an annual premium to an insurance company (the surety) in exchange for the insurer's commitment to uphold the contractor's promise to the organization or company that hired the contractor (the obligee).  If the contractor misses a deadline or breaches some other term of a contract, the organization it contracted with can ask the insurer to cover any losses that have ensued, up to the amount of the surety bond.  If the company has a valid claim, the insurance company will make payment.  After making good on the bond, whether the maximum amount or a lesser sum, the insurer usually tries to recover the funds from the contractor.

 

When Is a Surety Bond Required?

 

There are a number of circumstances in which an individual or business may need to buy a surety bond. 

 

  • To receive contracts from the government or from some general contractors, a construction firm or other bidder may need to have a surety bond.  Varieties of surety bond can include:  "bid bonds" guaranteeing that a contractor will accept a contract if its bid is successful; "performance bonds" guaranteeing that a contractor will complete a contract according to its terms; "payment bonds," guaranteeing that a contractor will pay subcontractors and suppliers, particularly on federal projects; and "maintenance bonds," guaranteeing that a contractor will provide upkeep and repairs for a certain amount time.

 

  • A surety bond such as a "license bond" or "permit bond" is sometimes a requirement for receiving certain business licenses or permits.

 

  • A business may need a "business service bond" or "fidelity bond" to protect itself or its clients against theft or other crimes by its employees

 

  • "Judicial bonds" may be needed by parties in civil or criminal litigation to guarantee court remedies or penalties.  These can include "bail bonds."

 

  • "Fiduciary bonds" are sometimes needed by individuals working with probate courts.  These ensure that these individuals will care for the assets of others professionally and honestly.

 

If you need advice relating to surety bonds, a business law attorney can help.


Monday, April 27, 2015

When Will An Immigrant Be Barred from Entry Due to Ties to Terrorism ?

When Will an Immigrant Be Barred from Entry Because of a Connection to Terrorism?

Section 212 of the Immigration and Nationality Act (INA) bars individuals from entry in the United States for a variety of reasons.  These include terrorism-related inadmissibility grounds (TRIG). 

Regardless of whether a person is coming to the U.S for tourism or employment, and regardless of whether he or she has married a U.S. citizen or won a visa lottery, TRIG may bar entry completely.

Types of Terrorism-Related Activities That May Be Covered

Terrorism-related activities include some that are violent and illegal, others that involve association with and support of causes or people involved in terrorism.  For example, a person who engages in terrorist acts, who has received military training from a terrorist organization, who has incited terrorist activity, or who has endorsed or espoused terrorism would be inadmissible.  So too would a spouse or child of anyone who engaged in terrorist activity during the preceding five years.

The INA's definition of terrorist activity covers various types of sabotage, assassination, kidnapping, hijacking, and other acts commonly associated with terror. 

"Engaging in Terrorist Activity" can involve planning and carrying out a terrorist act, but it can also be recruiting others to act, providing support, fundraising, or other help.  Providing a safe house, transportation or fake documents might constitute material support of a terrorist group.  So would feeding members of the group, distributing literature, or making a modest financial contribution.

Categories of Terrorist Organizations

Terrorist organizations are divided into three tiers:

  • Tier I includes Foreign Terrorist Organizations  (FTO) that threaten the security of the U.S. or U.S. citizens. 
  • Tier II includes groups on the Terrorist Exclusion List (TEL).  These are organizations that carry out or provide material support for terrorist acts that are unlawful under U.S. law or the laws of another country.
  • Tier III involves groups of two or more, organized or not, that are engaged in terrorist activity.  A less formal designation than the others, Tier III changes from time to time and determinations of who is affected are made on a case-by-case basis.

Exemptions

The Secretary of State and the Secretary of Homeland Security can exempt some individuals from TRIG.  Exemptions have been issued to people who acted under duress, to people who provided voluntary medical care, and to selected individuals with existing immigration benefits.  Because the definition of terrorist activity is broad, potentially encompassing freedom fighters, group exemptions have been given to a number of organizations ranging from the All Burma Students Democratic Front to the Democratic Movement for the Liberation of Eritrean Kunama.

Being involved in terrorism is a serious matter and can have an effect on the ability to obtain U.S. citizenship.  For more information regarding TRIG or if you think you might be exempt from exclusion, contact an experienced immigration attorney today.


Thursday, April 9, 2015

What is Estate Recovery ?

What is Estate Recovery?

Medicaid is a federal health program for individuals with low income and financial resources that is administered by each state. Each state may call this program by a different name. In California, for example, it is referred to as Medi-Cal. This program is intended to help individuals and couples pay for the cost of health care and nursing home care.

Most people are surprised to learn that Medicare (the health insurance available to all people over the age of 65) does not cover nursing home care. The average cost of nursing home care, also called "skilled nursing" or "convalescent care," can be $8,000 to $10,000 per month. Most people do not have the resources to cover these steep costs over an extended period of time without some form of assistance.

Qualifying for Medicaid can be complicated; each state has its own rules and guidelines for eligibility. Once qualified for a Medicaid subsidy, Medicaid will assign you a co-pay (your Share of Cost) for the nursing home care, based on your monthly income and ability to pay.

At the end of the Medicaid recipient's life (and the spouse's life, if applicable), Medicaid will begin "estate recovery" for the total cost spent during the recipient's lifetime. Medicaid will issue a bill to the estate, and will place a lien on the recipient's home in order to satisfy the debt. Many estate beneficiaries discover this debt only upon the death of a parent or loved one. In many cases, the Medicaid debt can consume most, if not all, estate assets.

There are estate planning strategies available that can help you accelerate qualification for a Medicaid subsidy, and also eliminate the possibility of a Medicaid lien at death. However, each state's laws are very specific, and this process is very complicated. It is very important to consult with an experienced elder law attorney in your jurisdiction.


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