December 28th, 2012
I got a letter this week from the “Corporate Records Service,” insisting that we “must account for 100% of the outstanding shares” by filing the 2012 – Annual Minutes Records Form. Don’t fall for it — it is another scam.
2012 saw a new law forbidding misleading representations that suggest that the company is related to the Secretary or State. These scams face fines of up to $2500 per violation unless they have a legend that says something like:
THIS PRODUCT OR SERVICE HAS NOT BEEN APPROVED OR ENDORSED BY ANY GOVERNMENTAL AGENCY, AND THIS OFFER IS NOT BEING MADE BY AN AGENCY OF THE GOVERNMENT.
This solicitation meets that obligation, but is still preying upon overworked small businesses that think that they are behind on their recordkeeping obligations. Sending a check to these guys do nothing but impoverish your firm, and enrich them. Save yourself some trouble, and recycle it — or even better, send everything to the
California Attorney General’s Office
Public Inquiry Unit
PO Box 944255
Sacramento CA 94244-2550
along with a complaint form that can be filled out here.
October 19th, 2012
Employers know that there is an election here in California November 6th, but what obligation do employers have to accommodate their employee’s need to cast ballots? Under section 14000 of the California Elections Code, if an employee does not have time off the clock to go vote, an employer has to provide paid time off:
(a) If a voter does not have sufficient time outside of working hours to vote at a statewide election, the voter may, without loss of pay, take off enough working time that, when added to the voting time available outside of working hours, will enable the voter to vote.
(b) No more than two hours of the time taken off for voting shall be without loss of pay. The time off for voting shall be only at the beginning or end of the regular working shift, whichever allows the most free time for voting and the least time off from the regular working shift, unless otherwise mutually agreed.
(c) If the employee on the third working day prior to the day of election, knows or has reason to believe that time off will be necessary to be able to vote on election day, the employee shall give the employer at least two working days’ notice that time off for voting is desired, in accordance with this section.
According to section 14001 of the Elections Code, employers have to give notice ten days in advance of statewide elections of the provisions of section 14000. The English language notice is here; the Spanish language notice can be found here.
If employees need to take time off, it is best to schedule as far in advance as possible. Employees don’t have the right to come to work late, or leave early, without notice.
With polls open 12 hours in California, most employees should be able to vote when they are not on duty. For those for whom it is unavoidable, schedule it in advance.
While allowing two paid hours off to vote may seem unfair to some employers, a lot of Americans sacrificed far more so that everyone has the right to vote. Allowing two hours off to vote twice every two years is not an intolerable burden.
October 11th, 2012
When I was in junior high, Anthony Newley had a song that he toured the talk shows with, and which had some modest success on the radio. It was titled “Teach the Children of the World”:
Teach the children of the world
Teach them before its just too late
Teach the parents of tomorrow
They are the children of today
I haven’t been able to find a video of it online, but I remembered its chorus through my education, and now through my children’s. I bring it up now because a brave educator and his family are facing the ultimate terror, because of their devotion to education: the loss of their daughter.
Malala Yousafzai is a 14-year-old girl in Pakistan who was shot by the Taliban for standing up for the right of women and girls to be educated. According to the Taliban’s spokesman, there is no doubt why:
A Taliban spokesman, Ehsanullah Ehsan, confirmed by phone that Ms. Yousafzai had been the target, calling her crusade for education rights an “obscenity.”
Malala was incredibly brave to advocate for education, but I do not need to exclaim her virtues when others, like a former First Lady of the United States, can do it so much better. Her father, Zaiuddin, is an educational activist in Pakistan’s Swat Valley, where actions have consequences. He has consistently fought for the right of girls to an education, to his peril and that of his family.
Education wasn’t an obscenity to me, but a lifeline. We all know teachers that have made the difference in our lives: my fifth-grade teacher, Mrs. Dorothy Mason; my English and US History teachers in junior high, Ms. Deborah Malm, and Mr. Peter Booz; my social studies teacher in high school, Ed Burke — I am leaving out so many more. I count myself lucky to be the son-in-law of a teacher who spent 38 years working with the handicapped, with infinite patience and good cheer.
Great teachers deserve all the respect we can give them. In Japan, where I taught English for two years, teachers are given the honorific sensei, just as doctors are. Great teachers open up the world, one child at a time — but for all time. The very best teach you to think, which is what the Taliban fear. Zaiuddin Yousafzai belongs in the Teacher’s Hall of Fame for making education available where it is most needed. Our prayers are with him and his family, and especially his daughter, Malala. I am glad that Zaiuddin is teaching the parents of tomorrow – the children of today.
10/17/2012 Update: Malala Yousafzai (see the link to a great political cartoon) was flown to Britain after having a bullet removed, and is now out of a coma. The early word is that she seems to have feeling in all her limbs. Just as good, it seems that Pakistan has woken to protest the Taliban’s barbarism.
October 2nd, 2012
It is easy to feel smug when we look back on our ancestors 1000 years ago. They had donkeys — we have 400 horsepower, 4 wheel drive vehicles. They had the Black Death — we have vaccines for all types of illness, even cancer. For a justice system, they had trial by ordeal — we have civil court depositions. Well, some things never change.
Actually, one thing has. In September, California’s Governor Jerry Brown signed Assembly Bill 1875, which generally limits civil depositions to just seven hours of testimony.
The federal courts have been following a seven hour rule for several years now. Federal Rule of Civil Procedure 30(d)(1) limits depositions to “1 day of 7 hours.” If someone tries to impede, delay, or frustrate a deposition, that person can be sanctioned.
New California Civil Procedure Code section 2025.290 provides:
(a) Except as provided in subdivision (b), or by any court order, including a case management order, a deposition examination of the witness by all counsel, other than the witness’ counsel of record, shall be limited to seven hours of total testimony. The court shall allow additional time, beyond any limits imposed by this section, if needed to fairly examine the deponent or if the deponent, another person, or any other circumstance impedes or delays the examination.(b) This section shall not apply under any of the following circumstances:(1) If the parties have stipulated that this section will not apply to a specific deposition or to the entire proceeding.(2) To any deposition of a witness designated as an expert pursuant to Sections 2034.210 to 2034.310, inclusive.(3) To any case designated as complex by the court pursuant to Rule 3.400 of the California Rules of Court, unless a licensed physician attests in a declaration served on the parties that the deponent suffers from an illness or condition that raises substantial medical doubt of survival of the deponent beyond six months, in which case the deposition examination of the witness by all counsel, other than the witness’ counsel of record, shall be limited to two days of no more than seven hours of total testimony each day, or 14 hours of total testimony.(4) To any case brought by an employee or applicant for employment against an employer for acts or omissions arising out of or relating to the employment relationship.(5) To any deposition of a person who is designated as the most qualified person to be deposed under Section 2025.230.(6) To any party who appeared in the action after the deposition has concluded, in which case the new party may notice another deposition subject to the requirements of this section.(c) It is the intent of the Legislature that any exclusions made by this section shall not be construed to create any presumption or any substantive change to existing law relating to the appropriate time limit for depositions falling within the exclusion. Nothing in this section shall be construed to affect the existing right of any party to move for a protective order or the court’s discretion to make any order that justice requires to limit a deposition in order to protect any party, deponent, or other natural person or organization from unwarranted annoyance, embarrassment, oppression, undue burden, or expense.
September 21st, 2012
Your phone rings, and it is your friend from the PTA: your name is listed in the local paper for having skipped jury duty last month. Your friend informs you that you may be subject to jail time and/or a fine. You were called for jury duty awhile ago, but you checked the website, and you didn’t have to go in — but when was that? Last year? The year before? Your friend sounds worried, but tells you that there is a number to call, and you get the number. Now your fingers are shaking a little bit as you dial.
Your fingers start shaking a little more as you listen to the recorded message tell you the bad news that you may face a thirty day jail term and a $500 fine — but then you hear that this is all just a joke, but you can use the number to mess around with the head of one of your friends. What the —?
This is really happening in Pennsylvania, as the Administrator for the Courts, Zygmont Pines (yes, that is his real name) is warning about the hoax. The only question is how soon it will spread to the jokers here in California. As much of a drag that jury duty is, it is vitally necessary for our justice system. If one of your friends tries to play this one on you, just tell him its really not funny.
September 20th, 2012
Lawyers love Latin — it makes the sordid sound sophisticated. After reading the below, ask yourself cui bono? Who benefits?
Judge William Pauley recently knocked down an attorneys’ fee request:
“”Astonishingly, Kramer Levin attorneys, paralegals, and staff amassed 5536.4 billable hours on this matter, employing four partners, three special counsel, ten associates, eight paralegals and a summer associate,” he said, with partners billing in a range of $680 per hour to $1025 per hour, associates from $440 per hour to $745 per hour, paralegals from $250 per hour to $295 per hour, and “last but not least,” a summer associate for $335 per hour.”
Now, partners billing between $700 and $1000 an hour is pretty steep — but maybe, just maybe, they are very, very good. Then to have 10 associates — attorneys either too new or not good enough to be partners — billing between $440 and $745 an hour?
But here comes the kicker: a summer associate billing at $335 an hour? A summer associate is a law student who is only there for the summer. A summer associate is not an attorney — just a wanna-be attorney (I know — I was one, back in the Reagan administration). Can you call yourself Robin Hood if you steal from the rich — and become rich doing so?
September 13th, 2012
The copyright trolls had a bad day at the beginning of September, as Judge Phyllis Hamilton of the Northern District of California found that wireless router owners do not have a duty to secure Internet connections from outsiders.
The issue in AF Holdings v. Doe (Hatfield), US Dist Court, ND Cal. C12-2049 (PJH) is negligence. Can the owner of an Internet connection (like a wireless router, for example) be negligent in preventing third parties from using the connection to access and copy copyrighted content?
For there to be negligence, there first may be a duty. Automobile drivers, for example, have duties both to their passengers and third parties that they might encounter, not to injure them in any way. Employers have duties to their employees not to use machinery in a dangerous manner. However, Judge Hamilton ruled that there is no duty of the owner of an Internet connection to the owner of copyrighted content: ”AF Holdings has not articulated any basis for imposing on Hatfield a legal duty to prevent the infringement of AF Holdings’ copyrighted works, and the court is aware of none.”
Judge Hamilton put a further stake in the heart of AF Holdings’ argument by finding that federal law regarding copyright and the Communications Decency Act supersede, or preempt, state and local law, meaning that local laws regarding negligence have no effect in terms of negligence for maintaining an internet connection.
Judge Hamilton’s ruling does not mean that wireless router owners are now free to take off password protection from their wireless routers. Acting recklessly, knowing that somebody will use the router to download prohibited content, legally acts as a “knowingly” allowing someone to use your internet connection illegally, and that can be considered contributory copyright infringement. Moreover, allowing lots of people to use your connection will inevitably slow down the access that you paid for. Lastly, if someone is committing a crime using your wireless connection, you could have SWAT teams invading your home, and even Martha Stewart can tell you that that’s NOT a good thing.
September 12th, 2012
“By January 1, 2013, whenever an employer enters into a contract of employment with an employee for services to be rendered within this state and the contemplated method of payment of the employee involves commissions, the contract shall be in writing and shall set forth the method by which the commissions shall be computed and paid.”
This parallels the requirement from the beginning of last year that effectively requires that every employment relationship gets put into writing via a state-supplied form.
One important issue is the distinction between a commission and a performance bonus, which is not required to be in writing: “‘Commissions’ does not include short-term productivity bonuses such as are paid to retail clerks; and it does not include bonus and profit-sharing plans, unless there as been an offer by the employer to pay a fixed percentage of sales or profits as compensation for work to be performed.” Cal. Lab. Code sec. 2751(d).
Each commission contract needs to be acknowledged by both the business’ representative AND the employee, who needs to get an acknowledged copy. The fact that a physical signature is not required actually brings us into the 21st century — even if the best process is to still get a physical signature from both parties to the contract. If you want to conduct everything electronically, you can — but make sure the information is backed up and easily accessible.
If the contract is only for a particular period of time, but work is still being done, it is presumed that the contract is still in force until there is a new written contract, or the employment is terminated.
Consulting with Bay Oak Law about your specific situation is best, but if you want to walk on the wild side and do it yourself, know that the following issues are key:
A Percentage of What? Commissions are normally percentage based, and it should be clear what the percentage is of. Is it of the sales price? Is it what the client actually pays (important if there are discounts for early payment)? Is it the net profit or gross profit? This needs to be clearly spelled out.
Are There Limits? If your commissioned salespeople have territories, what happens if the salesperson makes a sale outside the territory? What about later purchases by the same customer — does the salesperson get anything for those, and if so, for when?
When Is It Earned? Is the commission earned when the order is handed in? When it is shipped? 31 days after receipt by the customer? The clearer this is, the better off both the employer and employee are — once they agree to the terms.
Advances Policy? Is the commission considered an “advance” that might be withdrawn or reversed? This procedure has to be in writing, or it is likely to be disregarded by the Labor Commissioner or the court.
Clawbacks? If the product is returned, does the employer have the right to “clawback” the commission? If so, under what conditions? Unless these conditions are in writing on the document that the employee acknowledges receiving, it is not likely to be enforced.
Is the Employment At Will? The terms of the employment should be listed: is it for
How Long Does It Last? If there is a length of time (six months, three years, etc.), the writing should also make clear what happens after the term is done, but the parties are still continuing to perform. If the contract is terminable at will, specify what happens after it is terminated, but there are commissions in the pipeline.
There are a lot of variables, and a consultation with a lawyer can be valuable.
September 6th, 2012
A few years ago, we warned about scammers who were sending official-looking notices from the “Business Filings Division,” asking for $239 for statement of information filings. It was all a scam — but I remember spending fifteen minutes looking at one, trying to verify that it wasn’t official.
It seems that these scammers are back, only this time they are hitting on companies with applications or registrations with the United States Patent & Trademark Office. They look official and ask for the payment of fees. If you are catching up with paperwork on a Friday evening, you don’t want to fall for this. If you have a trademark application or registration, the only office that will contact you is the “United States Patent & Trademark Office,” which is in Alexandria, Virginia, and the email domain is “@uspto.gov.” If you have questions, both our firm and the USPTO can help keep the scammers away.
September 4th, 2012
The article wonders whether the information will be reliable enough to be admitted in a court of law, but another legitimate question is whether there are many who can afford to fight the evidentiary battles. The owners of copyrighted content are very good at targeting the price points where it is cheaper to settle than to fight.
BitTorrent is seen as a godsend to many illegal downloaders, but it should be seen for what it is: a trap. To participate in a “swarm,” you have to give up your IP address, so that the other members of the swarm can copy from and to you. If you don’t want to leave your home address with the owners of the content, then do not use BitTorrent. The End. Finis. Owari.