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Database Hacks - Are Banks Required To Notify You

admin — Tue, 12 Feb 2008 12:05:14 +0000

Ever wonder if banks are required to tell customers when
their systems are hacked? You may be shocked to learn that
they are not. The only exception to this standard has been
database hacks that effect California residents. Companies
doing business in California are required to give such
notice under the California Security Breach Information Act.
The situation is changing quickly on the federal level.

Regulations have been issued by federal finance agencies
that now force banks to tell customers when their personal
data has been exposed to unauthorized third parties. The
regulations are issued pursuant to the Gramm-Leach-Bliley
Act, which contains language requiring financial
institutions to prevent unauthorized access and use of
consumer information.

The new regulations appear to be a reaction to several
recent high-profile data leaks. They include incidents such
as Bank of America losing data tapes containing information
for over 1 million government employees and the breach of
databases for LexisNexis and ChoicePoint. It is well known
that numerous other banks have also been hacked over the
years, but the information has been hushed up.

The new regulations require financial institutions to notify
account holders if the institution becomes aware of
unauthorized access to sensitive customer information. The
directives apply to banks and savings and loan companies,
but not credit unions.

There are two serious loopholes in the regulations. First, a
financial institution that discovers a database breach must
only notify account holders if it is “reasonably possible”
that personal details will be misused. Second, the
regulations only apply to personal data, not business or
commercial accounts.

While these new regulations are a positive step, one could
drive a truck through the two loopholes. Determining whether
it is “reasonably possible” that your information will be
misused is a vague standard that many financial institutions
will use to withhold information. Put bluntly, the
notification regulations are gutless.

The best method for keeping an eye on database breaches is
to look for stories in the news. Under California law,
companies are required to give notice to California
residents when breaches occur. If you see a story about your
bank giving notice of a hack to California residents, your
personal information may have also been exposed. Hackers do
not restrict their attacks to California residents.

Richard Chapo is an attorney with
http://www.sandiegobusinesslawfirm.com - a law firm
providing legal advice to California businesses. This
article is for general education purposes and does not
address every facet of the subject matter. Nothing in this
article creates an attorney-client relationship.

Google’s Book Scanning and Copyright Laws

admin — Tue, 12 Feb 2008 12:05:08 +0000

As you may know, Google is making an effort to scan every book in the world. The goal is to create a giant online database of every book that can be searched. One small problem is the fact that Google is violating copyright laws.

Google argues its book database doesn’t violate copyright laws. The company suggests it only shows short passages and accompanies the text with ads showcasing where the full books can be purchased. Of course, the ads are Google Adwords from which the company makes a tidy profit.

On Tuesday, the search goliath rolled out stand-alone book search services in 14 countries. The same day, the Text and Academic Authors Association (TAA) became the latest publishers’ organization to call Google’s opt-out strategy backwards.

Authors, Publishers and publishing associations are not happy. While Google only publishes the full text of books in the public domain, it is still copying entire books for which it has no permission. Google claims it can do this because the books are being scanned from versions owned by public libraries. Fearing an avalanche of lawsuits, Google backed off.

In August, Google stopped scanning copyrighted books in public library collections. At the same time, it gave publishers the right to submit lists of books the publishers didn’t want scanned. As you can image, publishers still aren’t happy.

The Arrogance of Google

Once viewed as the underdog to giants such as Microsoft, Google continues to act like the local school bully. In this case, the company has taken such an arrogant approach that lawsuits are inevitable. Google is going to take a beating in the lawsuits and here is why.

Consider the neighborhood you live in. What if a local crime syndicate informed every household it was going to steal everything in each household. Undoubtedly, there would be calls of outrage. In response, what if the crime syndicate then suggested you could send a list of items in your house that you didn’t want stolen? This is exactly what Google is doing.

Google’s decision to scan every book in the world is idealistic, but laughably simple minded. At a time when the recording industry is suing teenagers for file swapping, one would think Google would get a clue.

Richard A. Chapo is a San Diego business lawyer with http://www.sandiegobusinesslawfirm.com - providing legal services and legal advice to businesses in San Diego, California.

FTC Requires Companies To Destroy Consumer Records

admin — Tue, 12 Feb 2008 12:01:10 +0000

On June 1, 2005, the Federal Trade Commission issued new regulations requiring companies to destroy certain consumer records. The specific rule requires consumer information such as credit reports to be physically destroyed after it is used.

Records

The rule covers practically any consumer records. Examples include credit reports, court records, employment histories and rental histories to mention only a few.

Identity Theft

Heading complaints from constituents, Congress has been trying to figure out how to deal with growing identity theft problems. In response, the FTC rule requires all personal information to be:

1. Burned(!),

2. Pulverized,

3. Shredded, or

4. Destroyed.

Whether you shred the records or stand in the parking lot with a flamethrower, the rule requires the documents to be destroyed to the extent they cannot be read. Importantly, the rule also applies to electronic files.

As an agency rule, the new regulation does not result in any criminal penalties. Instead, the FTC penalty provisions call for a fine of up to $2,500 per violation. Individuals that have information misused can also seek damages in civil lawsuits.

Effective?

The FTC should be applauded for taking any step to help in the fight against identity theft. The flood of recent public disclosures by companies admitting to lost records is appalling. But does this new rule really help?

No.

The new regulation provides no provisions on how long the records can be held before being destroyed. This effectively neuters the regulation. Any claim of violation is going to be refuted by the defense of, “We destroy records every xxx months.” Even if you disagree with this assessment, consider the destruction of electronic files.

Electronic files are automatically backed up on hard drives. Merely deleting a file does not erase it from a hard drive. To comply with the regulations, are companies supposed to wipe all their hard drives every day or is deleting the records enough? Wiping the drives is incredibly burdensome while deleting files is useless. As you might imagine, the FTC provides no guidance on the issue.

Cutting to the chase, the FTC has issued this rule for one reason - to satisfy Congress. It has little practical impact in protecting your private information and leaves companies with another vague regulatory requirement.

Richard Chapo, Esq., is with http://www.sandiegobusinesslawfirm.com offering business law advice to California businesses. This article is for general education purposes and does not address every facet of the subject matter. Nothing in this article creates an attorney-client relationship.

Why You Need A Business Entity

admin — Tue, 12 Feb 2008 11:02:32 +0000

When starting or expanding a business, many owners wonder if they should form a business entity and, if so, which one they should use. There is a wide variety of information and “pitches” being made on the Internet regarding the benefits of certain entities versus others. When you cut through the flak, however, the primary reason for forming a business entity is to create protection from personal liability arising from your business activities.

It is well established that up to eighty percent of businesses will fail in their first two years. Many of these businesses, and probably yours, carry a high level of personal risk for their owners. If you are not using the correct entity for your particular business, you are going to be personally liable if the business fails. Do you want to expose your home, car and other assets? How about the assets owned by your spouse or their paycheck from a regular job? Selecting the correct entity for your business prevents such nightmares from occurring. More importantly, you can sleep at night knowing that the worst thing that can happen is losing your investment in the business, not your home.

Business Structures

There are a number of business structure options that exist in the modern corporate world. Following is a short explanation of the most common business structures.

Corporations

Corporations come in two basic forms, a “C” corporation and an “S” corporation. There are a variety of differences, but the central one is a tax issue. Briefly put, “C” corporations are taxed on their revenues and you are then taxed separately on any money you take out of the corporation. An “S” corporation “passes through” all taxes to the shareholders with the information being reported on your personal tax returns.

Regardless of the tax classification, a corporation is considered an independent entity from a legal standpoint. This independent status acts as a shield between the activities of the business and your personal assets. As a practical example, Kmart recently filed bankruptcy. The individual shareholders were not required to file bankruptcy and lost nothing more than their investment in the stock of the company. Forming and using a corporation for your business activities will have the same effect, to wit, your personal assets will not be wiped out if the business fails.

Limited Liability Company

A limited liability company, or “LLC” as it is better known, was a very popular entity choice in the early 1990s. LLCs are similar to corporations, but can be taxed as a partnership. In California, the LLC can have either one owner or two. Regardless of the number, these owners carry the legal title of “member.” The LLC provides a shield for your personal assets just like a corporation.

Partnerships

In my opinion, it is better to have died a small child then be in a partnership. Unfortunately, many business owners form partnerships and don’t even know it. This occurs when they go into business with another person. If no business entity is formed, the law considers the business to be a partnership and treats it accordingly.

Partnerships are dangerous for one primary reason: a partnership does not provide any protection from liability and, in many ways, invites personal liability. Under well-established law, most partnerships are classified as “general”. This simply means that all the partners are contributing to the administration and running of the partnership business. This classification can have grisly results.

In a general partnership, each partner is jointly liable for the debts of any other partner arising from the business. For instance, you and your partner go to a business dinner with a client. Your partner has a drink and then a few more. They then get into an accident on the way home. Each of the partners is liable for the damages claimed by the injured people. That means YOU! Even if you were not in the car, did not rent the car, never saw the car and don’t drink!

Partnerships are a recipe for disaster. Stay away from them whenever possible.

Limited Partnerships

Limited Partnerships [”LP”] are perhaps the most misunderstood business entity. A limited partnership is similar to a general partnership, but allows a number of the partners to limit their liability by being limited partners. It is critical to note that these limited partners are restricted to simply making a capital [cash, content, equipment] contribution to the partnership. They cannot be involved in actively running the business. If they are, they lose any protection from partnership debts. Many limited partnerships end disastrously. If you are married to the idea of pursuing a limited partnership, you must do so in combination with corporations. That particular strategy is well beyond the scope of this article, but feel free to contact me if you wish to pursue a limited partnership.

Business owners should protect themselves by forming entities for their business activities. The real issue is identifying the structure that is best for your particular situation.

Tax Benefits of A ‘C’ Corporation - Funding

admin — Tue, 12 Feb 2008 10:03:13 +0000

If you are going to form a corporation, you might be surprised to learn a “C” corporation comes with a lot of tax benefits. While this article isn’t intended to replace the advice of a good tax professional, it may serve to open your eyes to the value of a “C” corporation.

“C” Corporation

The “C” in C corporation has a few legal ramifications, but it is primary a designation for tax purposes. Put in layman’s terms, the designation simply means the corporation will act as its own tax entity. In contrast, an “S” corporation acts as a pass through tax entity, pushing its financials down to the shareholder who report the information on their personal tax returns.

The Internet Revenue Code sets out the law on tax and it contains a few juicy provisions for corporations. Lets take a look at one of the advantages.

Incorporating

When a party transfers something of value to another party, the IRS gets interested. It views the receipt of something of value as a taxable event. In simply terms, if you pay me for forming a corporation, I have to report and pay taxes on the money. Since a C Corporation is a stand alone tax entity, what happens when you purchase stock?

You have made arrangements to form a “C” corporation. Now you have to buy stock in it to become a shareholder. If you exchange money or property for the shares, the IRS takes the position no taxable event occurred. In essence, this means the corporation will not have to report you contribution as part of its revenues. If the money isn’t considered a part of the corporate revenues, no tax must be paid on it.

The exact rules for funding a corporation are a bit more complex. With any tax issue, you can expect there to be roughly fifty exceptions and qualifiers. For instance, if you were to exchange services instead of money for the stock, the above example would not apply. Make sure you speak with a tax professional to handle your particular situation correctly.

In Closing

Many people choose a business entity without considering all relevant aspects. Taxes definitely constitute one of these aspects. Make sure you look into them prior to making your decision.

Richard Chapo is with http://www.sandiegobusinesslawfirm.com - providing legal services to San Diego businesses.

Choosing A Process Server

admin — Tue, 12 Feb 2008 10:03:01 +0000

In civil court matters, a process server is someone who serves or delivers legal documents, ie. subpeonas, summonses, court orders, various legal notices and in some cases writs. Process servers normally fall into one of four (4) categories:

1. Registered or licensed process servers: In most states, process servers are registered by their county. In some states, like California a process server, once registered in one county can serve papers in any other county within that state. In some other states a process server can only serve papers in the county in which he or she is registered. Most, but not all counties, when registering a process server require the applicant to be bonded or insured.

2. Private detectives and investigators: In most states private detectives and investigators are licensed by the state and exempt from registering as process servers. They and anyone in their employ can serve legal process and when doing so are considered officers of the court.

3. Sheriffs, Marshals and Constables: Sworn peace officers.

4. Non registered or licensed individuals: Friends, relatives and others.

In many states as in California a non registered individual may serve up to ten (10) legal documents each year provided that individual is not a party to the action at hand. ie: a plaintiff or defendant, etc.. When the service of the paper has been completed the server must sign an affidavit that the paper was served properly. That affidavit must usually be signed under penalty of perjury.

It is not usually a good idea to have a non professional serve process. They do not normally know the laws and rules involved in process serving nor do they usually know how to fill out a proper proof of service. Either of these can cause a service to be declared invalid and possibly cause you to lose the case or at the least force you to start over. Additionally many people attempt to evade service and a professional has a better chance of completing service. Finally, process serving can be very dangerous. Many people get very angry when served and attempt to take it out on the process server. Over the years I have had many servers beat up and attacked with knives or clubs or hit with thrown rocks.
I have had several servers that were non fatal victims of vehicular attacks and three servers that were shot, several more were shot at but not hit.

At one time, Sheriffs, Marshals and Constables were considered good choices for serving papers, however that is not now usually the case. Most Marshals no longer serve papers and many Sheriffs and Constables are so busy doing other things that your papers may sit for weeks or longer before or if they are taken out for service. Additionally, many people, when the see a Marshal’s or Sheriff’s uniform, just do not answer their door. The Sheriff or Marshal walks away and the papers are returned unserved.

Licensed private detectives and investigators can sometimes make the best servers, however not all of them serve papers and many believe that since they are “big shot” investigators they should charge far more than registered process servers. Others serve so few papers that they sometimes “make a mountain out of a molehill” and turn a fairly easy service into a difficult one. Other investigators turn every service into an investigation in order to run up billable hours. Then again, if you find a good detective agency, they will have numerous service assignments and investigators that can serve papers fast and efficiently for a reasonable fee.

Most licensed investigators can be trusted to be honest about the papers they serve. It is not easy to obtain a license and if they get caught commiting perjury by saying they served a paper when they did not or if they get caught billing a client for work that was not done, they can lose their license. If they lose their license they are out of business as they usually can not get a license reinstated. Additionally, in most states, complaints can be filed against a licensee and those complaints are investigated. Prospective clients can contact the state licensing board and obtain a record of adjudicated complaints.

Registered process servers usually know the laws and rules and for the most part are honest and hard workers. In most counties it is, however, easy to register and there is usually no licensing body to keep an eye on them. Therefore, if the registration is revoked the server can usually get a friend or relative to register and then the server can list himself or herself as an independant contractor working for the new registrant. Also there is no experience required in order to register. Finally there is usually no place where a prospective client can check for or file a complaint against a registrant. The only recourse a client usually has against a registered process server is to file a law suit against the party and then if a judgment is obtained to go against the registrants bond. Note, however that not all registering counties or states require a bond and those that do usually require a bond of $2000.00 or less.

When searching for a process server take care. Do not choose just anyone. Never use a friend or relative. If you find a server over the internet do not just go by the looks of the web site. A person can be a poor web site designer and a good server or vice versa. Call the server and ask questions based on the foregoing information in this article. If the server refuses to speak with you do not use his or her services. If the server is a licensed investigator check out the license. Contact the Better Business Bureau and see if they have any information. Try not to use a one person operation as he or she may not be able to keep up with the workload or may be forced to charge high fees in order to make up for a lack of steady business.

When making your choice do not go by price. Expensive servers are not necessarily the best just as inexpensive servers are not necessarily the worst. Hallstrom Detective Agency was considered to have one of the best process serving divisions in the United States, yet we charged less than almost any other service in the country. Ask about addirtional fees. Many companies quote a low initial fee and then tack on a fortune in incidental fees.

For links to directories listing process servers, private investigators, detective agencies, court reporters, people finders and more, offered for attorneys and other legal practitioners visit http://services.resourcesforattorneys.com a directory of directories listing links to services of use to the legal profession.

The foregoing information is not given as legal advice. It is instead given as information and opinion gathered and developed through experience over the last thirty years. David G. Hallstrom, Sr. is the owner of Hallstrom Detective Agency and although the agency no longer offers process serving services, it has, through it’s servers, completed service of several hundred thousand legal documents. Although the author believes the information to be accurate no guarantee is made or implied.

This article may be reprinted, at no charge, provided that credit is given to the author and that any links contained herein are retained and kept active. ©Copyright 2005 Resources For Attorneys. All Rights Reserved Worldwide.

David G. Hallstrom, Sr. is a retired private investigator and currently publishes several internet directories including http://www.resourcesforattorneys.com a legal and lifestyle resources directory for attorneys, lawyers and the internet public.

California Limited Liability Company - An Overview

admin — Tue, 12 Feb 2008 09:03:26 +0000

Many people are surprised to learn that the LLC business entity is a fairly recent phenomenon. Wyoming was the first state to legislate the creation of LLCs in 1977. Most states didn’t jump on the LLC bandwagon until 1988 when the IRS classified the LLC as a pass through entity for tax purposes. This ruling turned LLCs into the popular monster they are today. Now every state has legislation allowing the creation of LLCs and California is no different.

What Are The Advantages To Forming A LLC?

The LLC business entity offers many advantages to small businesses. An LLC is going to provide a shield between your business activities and personal assets identical to a corporation. Unlike a corporation, there are far fewer corporate formalities. Instead of setting up payroll, you can take draws from the entity. You are not required to maintain a balance sheet, although this is recommended. In short, the LLC entity is all about flexibility.

Should I Form A California LLC For My Business?

Maybe. While LLCs offer significant flexibility to small businesses, California charges an LLC tax that can really cramp your profits. This tax is charged on your gross revenues for the “privilege of doing business in California” as an LLC. Lucky you. Depending upon your situation, forming an “S” corporation may be a better option in California.

Additional Tax Issues

California allows a single person to own an LLC. This causes problems from a tax perspective. The IRS doesn’t really acknowledge the existence of LLCs owned by one person. The IRS takes the position that you must have two people to be taxes as a partnership. Accordingly, it treats single owner LLCs as sole proprietorships. The problem with this result is that you end up paying self-employment taxes.

While LLC structures provide significant flexibility, the structure is not always the best choice for a small business. Make sure you speak with competent tax counsel prior to forming an LLC for your business.

Whistleblower Laws - Qui Tam

admin — Tue, 12 Feb 2008 09:03:20 +0000

Qui tam is law terminology associated with whistleblower protection laws for individuals who inform the government about fraud or other corporation misdoings. The phrase is derived from the Latin expression ‘qui tam pro domino rege quam pro seipse’, which translates to ‘he who sues for the king as for himself’. In general a Qui tam lawsuit is filed by private individuals on behalf of the government in an attempt to prevent abuse of funding and finances.

Many people who are whistleblowers realize that they will often face retaliation and harsh consequences if the speak out against their employer. This generally causes most individuals who witness these types of illegal activities to remain silent. Fortunately, these laws are in place to protect the brave people who have the courage to stand up for what they believe in. These laws are strictly designed to encourage and compensate these individuals who have taken this incredible risk to protect their country.

While it might seem like a noble idea to report illegal corporate activities to the government, the thought of losing everything you have worked for is often to overwhelming. Without employment and financial security, reporting illegal business activities is often the last thing on an employee’s mind. The United States government recognizes this and stipulates that 10% of the punitive settlement will go to the person acting on behalf of the government and its citizens.

To learn more about Whistleblower Laws and Qui Tam, please visit http://www.sddefenselawyers.com/quitam/ This article may be freely reprinted as long as this resource box is included and all links stay intact.

Business Name - How To Pick One From A Legal Perspective

admin — Tue, 12 Feb 2008 09:03:12 +0000

A business name can be a huge factor in the ultimate success or failure of the entity. Unfortunately, many people fail to give a lot of thought to it prior to moving forward. There are many factors to consider including something memorable, a name related to your area of work and, potentially, the availability of the domain name.

Married?

Picking a business name is like getting married. You are going to have to stick with it till the bitter end. It is estimated a prospect will need to see your advertisement and business name at least 22 times prior to doing business with you. Once they associate your business with a certain name, making a change will be disastrous. Once you pick something, stick with it.

Naming Your Business

If you are going to be married to your business name, you need to make sure the bride isn’t already married to another suitor. There are four significant issues to consider.

Initially, you must determine whether the name is already being used in your state. The Secretary of State controls the names of all corporations, LLCs and partnerships. Most also have a web site where you can conduct name searches. Even if you are a sole proprietor, you should check the name against those already registered in the state database. If the name is being used, you will need to consider an alternative.

Assuming the name passed must with the Secretary of State, you should check it against existing trademarks file with the Patent and Trademark Office. The “PTO” maintains an online database. As with the Secretary of State, you can conduct an online search to make sure no other business is using it.

In this day and age, many businesses incorporate a web site as part of their business model. If you are in this boat, you need to check to see if the business name is available as a domain. If it is, you should register it immediately. If not, you can either change your business name again or focus on a domain name incorporating your service or product instead of the business name.

Avoiding Problems

You business could be devastated if you do not take these precautionary steps. Imagine the negative impact on your business if the name has to be changed three years down the line. Take a breath before you select a business name. Like a spouse, it can be either a good or bad choice.

Richard Chapo, Esq., is a business lawyer with http://www.sandiegobusinesslawfirm.com - offering legal advice to San Diego businesses. This article is for general education purposes and does not address every facet of the subject matter. Nothing in this article creates an attorney-client relationship.

Why Even A Simple Contract Can Save Your Bacon

admin — Tue, 12 Feb 2008 08:04:01 +0000

Every business owner says it; “Do I really need a written
contract?” The answer is “YES, YES and YES!” Using a written
contract is like buying insurance for your business deals,
but much better.

What Is A Contract?

Simply put, a contract is an enforceable agreement between
two or more parties. The contract contains the promises made
by the parties to one another, which is legally known as
“consideration.” These promises define the relationship
being undertaken as well as what happens if the business
relationship doesn’t work out. If one party fails to act
according to their promises, then they have “breached” the
contract and can be found liable for damages. The damages
typically equate to what the non-breaching party would have
received if there had been no breach.

Oral Contract v. Written Contract

You go to a party with a friend and meet someone interested
in your product or service. Eventually, you agree to provide
him with 1,000 units of your product in exchange for a
discounted price. You have created what is known as an “oral
contract.” He has promised to order products and you have
promised to provide them at a discounted price. Is the
agreement worth anything? Unfortunately, the answer is
probably no. Why? In most states, oral contracts are not
enforceable if they carry an inherent value in excess of
$500. Since it is so difficult to establish the terms of an
oral contract in a dispute the legal system tries to
discourage them. In fact, this legal restriction is
generally known as the “Statute of Frauds.”

Turning back to our example, what if you thought you were
going to give a 10 percent discount and he thought it was 20
percent? What if you can’t resolve it and he insists you
provide the discounted products? You will end up in court
with the dispute coming down to which party the judge or
jury believes. Are you really willing to take that gamble?

With even a simple written contract, you can create a clause
containing language that states you will give a 10 percent
discount. If the dispute ends up in court, he is asked if
his signature is on the bottom, the clause is read and you
win. The contract should also contain a clause requiring the
“prevailing party” to be reimbursed for their attorneys fees
and costs. In short, he has to pay your legal bills as well.

An additional benefit to using a written contract is the due
diligence element. I realize you will be shocked to learn
that there are unethical businesses. In negotiating a
contract, very specific requirements are put in writing.
What if the other party starts squirming? It may be a sign
they are unable to meet their obligations. Might that give
you pause before you commit to tying up your inventory? You
can save yourself a lot of headaches by discovering this
information in advance.

In summary, even a simple written contract should be a
mandatory bullet in your arsenal. Much like car insurance,
you will be glad you have one if a business transaction
falls apart.

Richard Chapo is the lead attorney for the law firm
http://www.SanDiegoBusinessLawFirm.com - a firm providing
legal advice to California businesses. This article is for
general education purposes and does not address every facet
of the subject matter. Nothing in this article creates an
attorney-client relationship.

Microsoft V. Google - Kai-Fu Lee’s Non-Compete Agreement

admin — Tue, 12 Feb 2008 07:05:12 +0000

Unless you’ve been on vacation all summer, the brawl between Google and Microsoft should be old news. New developments, however, have occurred with publication of the non-compete agreement signed by Kai-Fu Lee.

Google v. Microsoft

Earlier this year, Kai-Fu Lee quit Microsoft to go work for Google. In doing so, Lee allegedly violated a non-compete agreement he had signed with Microsoft. Predictably, Microsoft sued Lee to prevent the move and the brawl began. Microsoft landed the first punch by getting a temporary restraining order preventing Lee from working for Google until the case is resolved.

Non-Compete Language

As matters have moved forward, the language in the non-compete agreement has become public knowledge. Generally, Lee agreed not to work for a major competitor of Microsoft if he left the company for a period of one year. The specifics of the language, however, are grossly entertaining

In signing the non-compete agreement, Lee agreed:

1. “not to accept employment or engage in activities competitive with products, services or projectsof MicrosoftI worked on or learned confidential or proprietary information or trade secrets while employed.”

2. All litigation arising from the non-compete agreement would occur in the State of Washington.

Mr. Lee and Google have a serious problem. California courts rarely enforce non-compete agreements, while Washington courts do. Since Microsoft sued first and Lee specifically agreed to Washington jurisdiction, this case should remain in Washington. Google is trying to move jurisdiction to California, but Microsoft beat it to the punch. Google’s attorneys simply blew it.

Prediction

Predictions in legal disputes are iffy at best, but Mr. Lee and Google have really fallen on their face in this one. Why they didn’t sue Microsoft in California court before Microsoft could react is mind boggling. The deck is now stacked heavily in favor of Microsoft and you can expect an outright victory for Microsoft or a settlement on terms set by the company.

Richard A. Chapo is a San Diego business lawyer with http://www.sandiegobusinesslawfirm.com - providing legal services and legal advice to businesses in San Diego, California.

Criminal Defense - White Collar Crime

admin — Tue, 12 Feb 2008 06:05:19 +0000

White Collar Crimes are defined as non-violent acts committed by individuals or businesses in the course of daily working activity. Some of these crimes include embezzlement, bribery, tax evasion, false advertising and other types of fraud. They are generally used to obtain money, property or services to gain advantage in business or in ones personal life.

According to the FBI, white collar crimes cost the United States more than $300 billion annually. These crimes are considered to be federal offenses and even though state and local law enforcement may be involved in the cases, charges will most often be presented by federal agencies such as the FBI, IRS, US Customs, Secret Service, EPA or the SEC.

Penalties for white collar offenses generally include fines, house arrest, community confinement and sometimes imprisonment. Federal agencies will many times make mistakes when prosecuting these criminals. They routinely make mistakes that violate peoples constitutional and civil rights. That is why it’s so important to hire a lawyer if you’ve been charged with any of these types of crimes. Just going to trial can be enough to humiliate, embarrass and often time destroy the future of a growing business. It’s best to just settle these cases outside of the courtroom and protect the name of your business.

Please visit our San Diego Criminal Defense Law Firm if you have been convicted of Fraud or any other type of crime at http://www.sddefenselawyers.com

You may freely reprint this article granted that this resource box is attached and all hyper links remain intact and active.

Resolve Disputes With Your Partners Before They Happen

admin — Tue, 12 Feb 2008 06:03:25 +0000

A majority of businesses have ownership groups of less than
five individuals. While this provides for efficient and
effective management, difficulties arise when something
happens to one of the owners.

If your business has multiple owners, ask yourself what
happens if:

Irresponsible Need a Job

admin — Tue, 12 Feb 2008 06:03:22 +0000

Let’s face it so many people these days are so completely irresponsible one has to wonder what type a job they might be able to hold? One career path, which might fit the bill for a totally irresponsible person is to become an Attorney at Law. Now you might think that attorneys are responsible, but you are mistaken. You see not only are attorneys irresponsible but they help others who are irresponsible pretend to be responsible and re-assign their responsibility to another, an organization or an agency; that in itself is irresponsible as a citizen. Assisting another to defraud and forgo their duties to society and yet retain the efforts of the whole of that society or steal from the labors of another for that which you did not earn is irresponsible; how on Earth could it be another other than that.

Not long ago there was a huge defrauding by Law Students to discharge their student loans by using their new law degree and license to file bankruptcy. It was said to be good practice and some graduating students found a never-ending supply of bankruptcy clients not more than a 3-mile radius from the University Grounds.

So, if you are an irresponsible piece of garbage and a worthless excuse for a human being, I recommend you become a lawyer so you can continue your current level of work ethic and comfortable lifestyle that you are use to. Just think you can even drive a Beamer and pretend your human waste is without odor. All attorneys know everything is only a matter of definition. After all don’t your wants out weigh any other needs of society? If you believe that, you are already on your way to being a very excellent lawyer indeed. Think on this.

“Lance Winslow” - If you have innovative thoughts and unique perspectives, come think with Lance; http://www.WorldThinkTank.net/wttbbs

Licensing Your Copyrighted Works

admin — Tue, 12 Feb 2008 06:02:20 +0000

If you’ve taken the necessary steps to register your copyrighted works, you inevitably will have an opportunity to royalties off of them. To take advantage of the opportunity, you will need to be familiar with copyright license agreements.

A copyright license agreement sets for the terms under which a third party can use your content. In legal language, you will the “licensor” with the other party being the “licensee.” The purpose of the agreement is to set forth the terms under which you, the licensor, will grant the third party, licensee, the right to use, publish or reuse your copyrighted work in exchange for a royalty. Let’s take a closer look at key components of the licensing agreement.

Specific Rights Granted

This may sound obvious, but the agreement needs to detail exactly what copyrighted material can be used. If you have copyrighted articles, are you granting a right to use all of the articles or only certain ones? It is highly recommended that the agreement contain a detailed description of the exact materials being covered.

Once you agree upon the exact materials, you need to determine any restrictions on how the material can be used. Can the material be used on the Internet or will it be restricted to a certain niche’ such as manuals or collections of materials?

An extremely important issue is whether the agreement grants exclusive or non-exclusive rights. In English, this simply defines whether the licensor can grant similar rights to other parties. The grant of exclusive licenses should require a much larger royalty rate since you are essentially betting the third party will be successful.

Licensing Royalties

In exchange for your copyrighted work, the third party is going to make royalty payments to you. The particular amount of the royalty is dependent upon the nature of your work. Issues to consider include:

1) Will you be paid a flat amount or percentage of sales?

2) If a percentage, will it be figured from gross revenues or something less?

3) How often will you be paid?

4) What rights will you have to audit the books of the third party to determine you are getting the full royalty?

In some situations, you may decide to forgo a royalty payment. This usually occurs when the third party will use the materials in manner that produces massive publicity for you. For example, many professionals seek to right columns for publications as a marketing tool. Often, they will not charge the publication for the material because the resulting publicity carries enough of a benefit.

In Closing

If you are considering licensing copyrighted content, keep the above in mind. Since such agreements are difficult to break, hiring an attorney is worth the expense.

Richard A. Chapo is with http://www.sandiegobusinesslawfirm.com - providing legal services to San Diego businesses.

The Secret To Protecting Your Business Assets

admin — Tue, 12 Feb 2008 06:02:03 +0000

Regardless of the type of business you conduct, there is a
significant risk of being sued in our litigious society.
Lawsuits can range from claims of negligence to defective
products to disputes with employees. Incorporating is a
means of guarding against these potential threats.

Single Incorporation - Protecting Your Personal Assets

Incorporating your business is a method for creating a legal
wall between your personal assets and business. Any judgment
against your business will not impact your personal assets.
While your home, savings, stocks, etc., are protected, what
happens to your business? If a judgment is rendered against
your business, the business assets are as good as gone. This
doesn’t have to be the case.

Double Incorporation Strategy - Protect Your Business Assets

Many businesses can benefit from pursuing a double
incorporation strategy. The strategy is designed to address
the situation where a business has significant assets that
are exposed to litigation risk. If you incorporate your
business, it is all well and good that your personal assets
are not at risk. But what if your business has a number of
high value assets such as manufacturing machinery, office
equipment, popular domain name, custom software or other
items? Merely incorporating your business will not protect
these assets because they are owned by the business entity.
Since a successful lawsuit would result in a judgment
against the business entity, all assets of the business
could be seized as part of the judgment. In short, you lose
your machinery, office equipment, intellectual property or
any other item of tangible value. The double incorporation
strategy prevents this scenario.

As the name suggests, the double incorporation strategy
involves the creation of two business entities. The first is
your “at risk” business that interacts with your customers
or clients. The second entity, a “holding corporation”, is
then created to own the valuable assets of your business.
This holding corporation then leases the relevant business
assets to your “at risk” entity. If the “at risk” entity is
sued, the holding company merely recovers its assets and the
plaintiff is forced to settle for pennies on the dollar
because the “at risk” entity has few assets. In essence, the
plaintiff wins the battle, but loses the war.

Most people know that a business entity can be used to
create a protective shield for their personal assets. If
your business has high value assets, now you can use this
double incorporation strategy to protect those assets as
well.

California Financial Privacy Law Partially Invalidated

admin — Tue, 12 Feb 2008 06:02:02 +0000

The 9th Circuit Federal Court of Appeals has dealt a blow to privacy advocates by invalidating a California privacy law. In litigation brought by the American Bankers Association and others, the appellate court overruled the finding of a trial judge that the California law could stand. Instead, the appellate justices found the law to be pre-empted in part by the federal 2003 Fair and Accurate Credit Transactions Act.

When a state law conflicts with a federal one, the federal law takes precedent. For instance, the Supreme Court has ruled abortion to be constitutionally protected. No state may pass anti-abortion laws and have them enforced.

The question at issue in the California law was a section giving California residents the right to block financial institutions from selling their private information to third parties.

A San Francisco trial judge, Morrison C. England, Jr., had ruled the section conflicted with provisions of the Fair and Accurate Credit Transactions Act, but was not pre-empted because the federal law allowed for stricter state laws. The 9th Circuit court disagreed.

The case will be returned to Judge Morrison in the next 60 days. He will then determine whether any other provisions dealing with the sale of personal financial information are still enforceable. Given the appellate ruling, it is difficult to imagine a ruling upholding this section of the California law.

Notwithstanding these developments, approximately seventy percent of the California privacy law is still enforceable. Financial institution still must get permission from customers prior to selling or sharing your information with third parties.

You should be concerned about financial institutions selling your private information to others. With all the incidents of identity theft in the news, chances are you will eventually become a target. Banks should be focusing on protecting their customers, not making a buck off private information.

Copyright - What Can You Protect

admin — Tue, 12 Feb 2008 04:05:10 +0000

The legal protection known has “copyright” has come front and center over the past few years with major legal rulings regarding peer-to-peer networks on the Internet. Copyright protection, however, can be a confusing area of the law. This article details what can and cannot be protected by copyright.

Copyright protects “original works of authorship” in a tangible, fixed form of expression. The material does need to be directly perceptible as long as it can be expressed with the aid of technology. A good example of this is a movie, which requires a projection device of some sort.

Materials that can be copyrighted include:

1. Literary works;

2. Musical works, including any accompanying words

3. Dramatic works, including any accompanying music

4. Pantomimes and choreographic works

5. Pictorial, graphic, and sculptural works

6. Motion pictures and other audiovisual works

7. Sound recordings

8. Architectural works

Each of these categories is traditionally given a very broad reading. For instance, “literary works” include computer programs and plans for building a home are considered “pictorial, graphic, and sculptural works.” While copyright cuts a broad path, it doesn’t cover everything.

Protected by Copyright? - No

If a work is not tangible, copyright protection will not apply. This can lead to confusion, so here are a few categories not eligible for protection from copyright:

1. Works that are not fixed. For example, the statements made by experts at a round table discussion or a comedian’s stage act.

2. Titles, names, short phrases, and slogans. These materials may be eligible for patent protection.

3. Ideas, procedures and methods.

Copyright protection is a valuable intellectual property tool. If it all possible, copyright the material you produce to prevent others from misusing it.

Richard Chapo is with http://www.sandiegobusinesslawfirm.com - providing legal services to businesses in San Diego.

How To Give Notice of Copyright On Your Works

admin — Tue, 12 Feb 2008 04:03:13 +0000

The use of a copyright notice is no longer required under U. S. law, but you should still give notice whenever possible. Because prior law did contain such a requirement, however, the use of notice is still relevant to the copyright status of older works.

Under the 1976 Copyright Act, creators of covered works were required to give notice of copyright on the work in question. This requirement was eliminated when the United States signed onto the Berne Convention in March 1989.

You should give notice of copyright whenever possible because it puts the public on notice that the work is protected by copyright, identifies the copyright owner, and shows the year of first publication. Furthermore, in the event that a work is infringed, if a proper notice of copyright appears on the published copy or copies to which a defendant in a copyright infringement suit had access, then the defendant can’t claim innocent infringement as a defense. Innocent infringement occurs when the infringer did not realize that the work was protected.

The use of the copyright notice is the responsibility of the copyright owner and does not require advance permission from, or registration with, the Copyright Office.

Form of Notice for Visually Perceptible Copies

The notice for visually perceptible copies should contain all the following three elements:

1. The symbol © (the letter C in a circle), or the word “Copyright”;

2. The year of first publication of the work. The year date may be omitted where a pictorial, graphic, or sculptural work, with accompanying textual matter, if any, is reproduced in or on greeting cards, postcards, stationery, jewelry, dolls, toys, or any useful article; and

3. The name of the owner of copyright in the work, or an abbreviation by which the name can be recognized.

Here’s an example: © 2002 Jane Doe

Position of Notice

The copyright notice should be affixed to copies in such a way as to “give reasonable notice of the claim of copyright.” The three elements of the notice should ordinarily appear together on the copies or container.

In Closing

You work hard to create books, articles, music and other items. Make sure you protect them by giving copyright notice.

Richard A. Chapo is an attorney with http://www.sandiegobusinesslawfirm.com - providing legal services to San Diego businesses.

Class-Action Lawsuits - Can They Help You

admin — Tue, 12 Feb 2008 04:01:10 +0000

The recent withdrawals of the prescription medications Vioxx and Bextra from the marketplace due to safety concerns has class-action lawsuits in the news again. What is a class-action lawsuit? If you have been wronged, can a class-action lawsuit help you?

A class-action lawsuit is one in which a single law firm or attorney represents a group of individuals who have been wronged in some common way. The wrong may have come in the form of physical harm from a commercial product or perhaps in the form of financial harm done by a company misleading the public in some way. In the early 1990’s, class-action lawsuits were filed on behalf of women allegedly harmed by silicone breast implants, and now attorneys are filing class-action suits on behalf of people allegedly harmed through the use of Vioxx and Bextra.

There are advantages and disadvantages to class-action suits. The primary advantage is that they allow a group of people, perhaps numbering in the thousands, an opportunity to have their case heard in court without each of them having to file a separate lawsuit. If thousands, or even tens of thousands, of people filed individual lawsuits against the same company for the same reason, the courts, both at the Federal and state levels, could become hopelessly clogged with nearly identical cases. Another advantage is that it allows people who may not have individually suffered enough harm to justify a lawsuit by themselves to seek compensation as a group, or “class” where the harm committed is cumulatively large.

The courts decide whether or not a case is to be heard as a class-action suit, as the court must decide if the merits of the case justify handling the suit in that way, and whether or not the attorney or law firm in question can adequately represent the victims involved. Should the case proceed as a class-action suit, only one or two representatives of the class need appear in court. They will represent the class; it is not necessary for all members of the class to be present at trial.

Once the case is certified as a class-action lawsuit, all parties representing the “class” are notified by their attorney either via mail or public notice. They then have the opportunity to “opt out”, should they not wish to be represented in the case by the attorneys in question. Unless the notified individuals opt out, they are included and will share in the award, should the lawsuit proceed to a successful conclusion. Individuals who choose to opt out may then elect to hire their own representation and perhaps file a lawsuit on their own.

Class action lawsuits typically take several years to reach their conclusion, particularly if the suit is followed by appeals by the losing party. It is not uncommon, however, for class action lawsuits to be settled out of court.

As always, should you find yourself in a situation where a lawsuit might be warranted, be sure to consult with a qualified attorney.

©Copyright 2005 by Retro Marketing. Charles Essmeier is the owner of Retro Marketing, a firm devoted to informational Websites, including http://www.Bextra-Info.net/