Mediation

From my weekly (AM) radio segment titled "Legal Minute"

Going to court is a very costly and time-consuming process. So, we sometimes consider mediation for certain civil disputes such as those arising out of contracts, leases, small business issues and divorce. Estranged business partners may choose mediation by which to separate their affairs and divide the business assets. Mediation may also work well in dealing with issues with a neighbor, roommate, or co-worker because it may allow long-term peace to be restored between the parties. In a court action, there will be one winner and one loser. In a mediation, the goal is to arrive at a mutually agreeable solution after allowing both parties to present all issues in dispute. This process can uncover interpersonal issues that gave rise to the problem at hand. The basic process of mediation is conducive to achieving a mutually agreeable result. Opening statements begin the mediation, then are followed by each party’s presentation of their facts, after that, there are private caucuses. Following the private caucuses is the joint negotiation session and then a closing once the resolution of the issue has been agreed.  Mediations can be an effective self-help, low cost measure to dealing with interpersonal civil disputes.

Consigning your works

From my weekly (AM) radio segment titled "Legal Minute"

With the number of art and wine festivals taking place during the summer months, you would think that art and crafts are the great American pastime. Arts and crafts are a popular hobby or line of work for many people so it helps to understand how to consign your work properly so that you are not the victim of an unscrupulous gallery or dealer. There are generally three types of consignments: those under the Uniform Commercial Code or UCC, those under state consignment law and those made under a written consignment agreement. The UCC approach can help protect you if the gallery damages your artwork or goes bankrupt but there are certain requirements that must be fulfilled. Speak with your business lawyer about filling out the appropriate UCC forms to ensure that you are protected. California also has consignment laws which protect the artist or craftsman from losing their works if the gallery goes bankrupt although having a written consignment agreement in place is ideal in order to enforce our rights under these laws. An attorney can help you in crafting the consignment agreement.  Navigating the consignment process isn’t difficult and is well worth the effort when considering the time that went into creating the artwork.

Serving on a Non-Profit Board

From my weekly (AM) radio segment titled "Legal Minute"

Nationally, non-profit organizations are on the rise. One of the key tasks facing a founder of any non-profit is establishing a board of directors to oversee the organization. Non-profits receive favorable tax treatment due to the public interest they serve. The Boards of non-profits serve an important legal function to ensure that the non-profit is remaining true to its mission of service of the public interest. This is why non-profit directors are often called “trustees”. Being asked to serve on a non-profit Board can be a great honor but before stepping into the director role, investigate the non-profit carefully. During these trying economic times, many non-profits are in dire financial straits. Being asked to serve on a Board of a non-profit suffering under financial mismanagement can be a risky move. While the Board itself will not necessarily be responsible for the non-profit’s debt, a Board member may be held personally liable for unpaid taxes and penalties for failure to file returns or properly withhold wages. If there is not adequate Directors and Officers’ liability insurance, it is best to pass on, or resign from, the opportunity to serve on a non-profit Board.

Permission to Publish

From my weekly (AM) radio segment titled "Legal Minute"

These days, web publishing is still big business. The desire to make a website more interesting while working under a budget, though, can drive web publishers to cut corners and consider using material without permission on the grounds that it’s a fair use. You need to remember that the fair use doctrine under copyright law is very fact dependent and certainly cannot be used when the website is a for-profit enterprise. Also, you must remember that celebrity photos and videos are not free to the public simply because the subject of the photo or video is a public figure. Unless you took the photo or video yourself or created the logo or graphic on your own, it is safest to assume that the clip or image of whatever you wish to use is protected under copyright or trademark law. With that assumption, seeking permission to publish the clip or graphic is the best approach and one that will keep a web publisher out of the courtroom. Reproducing someone else’s copyrighted or trademarked work is considered infringement. The owner of the work can force you to remove the material and pay damages so it never saves to cut corners.

Foreclosure Woes

From my weekly (AM) radio segment titled "Legal Minute"

If foreclosure looms due to some missed payments, the first hard question to ask is whether you can afford to keep your house. The first thing you need to do is assess your equity in your home. The options you may or may not have depend on the extent of your equity. Second, use your time wisely to determine if there is a way out of foreclosure. Fortunately, foreclosure does not happen immediately. This gives you some time to pursue alternatives. You may be able to take advantage of recourse under the HOPE for Homeowners Act of 2008. Under the act you may be able to reduce your debt load by refinancing your mortgage under more favorable terms. Bankruptcy is another way in which to reduce your debt load. For instance, filing a Chapter 13 bankruptcy may allow you to pay off the late payments over a period of time. If you make all of the required payments by the end of the repayment period, you will be able to avoid foreclosure. A Chapter 7 bankruptcy, however, cannot cancel foreclosure. Negotiating loan forbearance with your lender, in which you make a reduced payment or no payment for a period of time, is another option.

30-Day Rule

From my weekly (AM) radio segment titled "Legal Minute"

Like most entrepreneurs these days, owning a website is just part of doing business. For product sold online, though, you must follow the Federal Trade Commission’s mail or telephone rule. Basically, the rule requires that when you advertise products online and accept orders via online and telephone methods, you must have a basis for meeting your stated shipping deadlines. In other words, if you are going to list shipping terms on your e-commerce website that say, for example, product will ship within 10 days of the order placement, then you must be able to meet those shipping terms. If, however, your e-commerce website is silent on the issue of shipping deadlines, then the FTC will impose a mandatory 30 day rule. The 30 day rule requires that you ship the product to the consumer within 30 days from the date on which a completed order or payment for that order is received. If a purchase is shipped COD or cash-on-delivery, the 30 day rule doesn’t apply. If you cannot meet the stated or mandatory shipping terms then the customer must be notified and consent to the delay.

Letting Employees Go

From my weekly (AM) radio segment titled "Legal Minute"

During these challenging economic times, if you own a small business you might find yourself in the position of having to let certain employees go. Most employees in the U.S. are “at will” which means that you can fire them at any time and for any reason, unless that reason is illegal. Because there are limits on the conditions under which an employer can terminate an employee, making a careful decision about employee termination is important to avoid the risk of legal claims. For instance, under State and Federal laws, employers are prohibited from firing an employee for discriminatory reasons. Examples of illegal discriminatory firing are firing an employee because of their age, race, gender, national origin, religion or disability. Retaliatory firing is also illegal if, for instance, an employee attempts to assert his rights under anti-discrimination laws. In addition, employers are prohibited from firing an employee because the worker took family medical leave or complained of an illegal company activity. Lastly, if an employment contract is involved, be sure to honor those promises and adhere to the termination terms of the contract.

H.R. Pufnstuf vs. McDonalds?

From my weekly (AM) radio segment titled "Legal Minute"

McDonalds has a reputation of being one of the most litigious companies in corporate America but those of us old enough to remember H.R. Pufnstuf will delight in this case. In 1973, Sid and Marty Krofft, the creators of H.R. Pufnstuf, successfully sued McDonald's, arguing that the McDonaldland premise was a ripoff of their popular TV show. The Kroffts claimed that the character Mayor McCheese was a direct copy of their character, "H.R. Pufnstuf". McDonald's was ultimately ordered to pay the Kroffts more than $1 million. McDonaldland, as it was depicted in the commercials (which can now be found on YouTube) was a magical place very similar to the popular H.R. Pufnstuf program. McDonald's had originally hoped the Kroffts would agree to license their characters for commercial promotions. When they declined, McDonaldland was created, purposely based on the H.R. Pufnstuf show. After the lawsuit, McDonaldland was all but closed. Over 30 years later, the law hasn’t changed. Get the license because copying doesn’t pay.

Adoption options

From my weekly (AM) radio segment titled "Legal Minute"

Adoption is the legal process that permanently gives parental rights to adoptive parents. Foster children are those who are in the child welfare system because the birth parents’ rights to these children have been terminated by court order. There are three ways to adopt children: agency, independent and inter-country adoptions. Licensed public or private adoption agencies are responsible for finding adoptive homes for the children in their care and they do so through their agency’s adoption process. Independent adoptions allow the birth parents to choose the adoptive parents and place the child up for adoption after signing a consent form which becomes irrevocable in thirty days. Inter-country adoptions allow prospective parents to adopt foreign born children for whom Federal law makes a special immigration visa available. Inter-country adoptions are completed in the child’s native country or in California. The adoption process requires paperwork, a family assessment, fees and much patience but is well worth the effort. Visit the Children and Family Services Division of the California government website for more information.

Don't Go Phishing

From my weekly (AM) radio segment titled "Legal Minute"

Phishing – spelled with a “ph” is not what you used to do at the lake during your summers. Instead, it’s a term used to describe an insidious form of Internet scam designed to steal valuable information such as credit card, social security numbers, user IDs and passwords. It is often perpetrated under the pretenses of an official communication from a trusted source, such as your bank, credit card company or online retailer. The email sent to you is the bait and it is designed to get you to click a link or respond with certain information to validate who you are or to supposedly correct an error. Many people take the bait only to later find that they’ve been phished and fallen victim to identity theft. Phishing is easy to do and it is becoming a common crime for that reason. California enacted a law in 2005 that imposes a fine of $2,500 per violation and permits the victim to seek up to $500,000 in damages but many say the law is still too weak on phishing scams. Until the law catches up with reality, be on the watch and don’t fall for the bait.

Gift Certificate Law

From my weekly (AM) radio segment titled "Legal Minute"

During those seasons when holiday shopping is in full swing, it’s helpful to know what gift certificates you get or give are valid. California is one of the states regulating aspects of gift certificate sales. California requires sellers of gift certificates to honor them in the event of bankruptcy. The California law does not permit gift certificates to have an expiration date unless certain conditions are met. The gift certificate must have an expiration date printed on its face in at least 10-point font. In California, a certificate without an expiration date remains valid until redeemed or replaced and may be redeemable in cash. Certain gift certificates are exempt from these requirements, such as gift certificates distributed as part of an awards, loyalty, or promotional program without anything of value being given in exchange, and those sold below face value at a volume discount to an employer or nonprofit charity for fundraising purposes. Also, California does not require a seller to replace a lost or stolen certificate. Happy Shopping!

The Domain Name Game

From my weekly (AM) radio segment titled "Legal Minute"

Do you need a domain name for your business or maybe that personal website where you share pictures with your family in another state? Whatever your purpose might be, you must think twice before registering that catchy domain name. If you make the mistake of choosing a domain name that is someone else’s trademark, then you run the risk of having to turn over the domain name to the true trademark owner. You will also lose your investment in the domain. For instance, let’s say you wanted to register the domain name for Taco Bell. Let’s say you ’re successful in doing that and purchase the rights to tacobell.com. As soon as you can say “quesadilla”, you will probably receive a letter from the Taco Bell Corporation informing you that your domain name infringes their trademark. The fact is, Taco Bell would have a valid argument under the law because they own the trademark to that name. At that point, you would be forced to give up use of the domain name and turn it over to the Taco Bell Corporation. Before registering a domain name, it pays to spend time researching the proposed name to make sure that it’s not already someone else’s trademark.

Paternity Rights

From my weekly (AM) radio segment titled "Legal Minute"

Paternity rights are not just the stuff of celebrity tabloids. Typically, when unmarried partners have a child and then split up or when the mother of a child born out of wedlock dies, paternity is usually an issue in dispute. In California, the mother or a person claiming to be the father can file a legal action under California Paternity laws. This legal claim is designed to establish parental rights and duties such as child support, custody and visitation. Signing a child’s birth certificate does not necessarily mean that the man signing is that child’s father. Under the state’s Paternity laws, any man who is said to be the father is entitled to take a DNA blood or saliva test to confirm or deny that fact. Comparing the DNA sequence of one person to that of another can prove whether one person’s DNA was derived from the other person’s DNA. The results of the test are available in about two weeks. The alleged father is entitled to legal representation and can dispute paternity if there is a basis to do so. Child support and custody can be awarded to either the father or the mother, depending on the circumstances.

Name Changes

From my weekly (AM) radio segment titled "Legal Minute"

Are you thinking of changing your name or your child’s name? You might have a good reason to do so as a result of divorce, marriage or child custody. But avoiding debt or the IRS is not a good reason under the law. In California, obtaining a name change is rather simple but it helps to know what is involved. The name change application must be filed with Superior Court. If filing for a child’s name change, the parents or legal guardian must submit the application. The application- or what’s called a petition – must state the person’s birthplace, residence, the new proposed name and the reason for the change. About four to eight weeks after the petition is filed, the court calls a hearing to determine whether the name change should be granted. The court gives the public an opportunity to object to the name change. This is done by the court publicizing its order for a period of four weeks. The publication is often in the local paper. A divorced spouse will usually object when the name change is for a child and that change was initiated by the other spouse. If no objections are made, however, the court grants the order and approves the new name.