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Can I Sue a Rental Car Company That’s Trying to Charge Me for Hail Damage?

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Joe EscalanteHi Joe,

I rented a vehicle on a long weekend to Texas. When I returned the car, they asked if I went anywhere where there was hail. I said no. They said there was damage to the rental vehicle. I said it rained for approximately 3 minutes and there was no hail. They said there was and now want to charge me $513.00 for the damages. I am not planning on paying this, can I sue them?

– Cynthia Elliot

 

Barely Legal Radio w/ Joe Escalante

This is a good case for the Small Claims division of your local county court. It will cost you a hundred dollars or so to file, but if you win, you can recover this cost.

The judge should demand some real proof from the company that the car left without this damage and returned with the damage. If they can prove this, they win. If they can’t, I think most judges would rule that, as a professional operation that does this every day, they have the burden of establishing a system that doesn’t leave it up to the opinion of some rental car guy who woke up on the wrong side of the bed.

You may have to pay it, then go to court. Or dispute the charge with the credit card company, then go to court.

That’s better than showing up to court without paying it. Bring evidence. Bring weather information for where you went on the dates in question. That will shut them up and really impress the judge.

In case they lie in court and change what they think caused the damage, send them a letter confirming what they said. That will limit them to some extent to that defense. If there was no hail, there is no charge. Good luck.

Attorney Joe Escalante answers your legal questions for free on our Facebook page every Tuesday and Friday at 10 a.m. PT.

 

Disclaimer: Communications between you and LegalZoom are protected by our Privacy Policy but not by the attorney-client privilege or as work product. LegalZoom provides access to independent attorneys and self-help services at your specific direction. We are not a law firm or a substitute for an attorney or law firm. We cannot provide any kind of advice, explanation, opinion, or recommendation about possible legal rights, remedies, defenses, options, selection of forms or strategies. Your access to the website is subject to our Terms of Use.

Written by Johanna

May 23rd, 2014 at 8:59 am

Posted in Legal News

How Do I Start a Nonprofit?

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Joe EscalanteHi Joe,

How do I start a nonprofit?

– Oscar P. Frack III

 

Barely Legal Radio w/ Joe Escalante

What I tell people is they can pay someone like me a lot, or they can read up on it at LegalZoom and use their services and save a lot.

However, make sure you have a good tax advisor as you go through the process. Click below and find out more.

I actually used LegalZoom to form a non-profit corp. for my local chapter of the Sons of The American Legion. They gave me this book too, which was helpful. It was a very smooth process, and now the entity is up and running!

http://www.nolo.com/products/how-to-form-a-nonprofit-corporation-nnp.html

Attorney Joe Escalante answers your legal questions for free on our Facebook page every Tuesday and Friday at 10 a.m. PT. 

 

Disclaimer: Communications between you and LegalZoom are protected by our Privacy Policy but not by the attorney-client privilege or as work product. LegalZoom provides access to independent attorneys and self-help services at your specific direction. We are not a law firm or a substitute for an attorney or law firm. We cannot provide any kind of advice, explanation, opinion, or recommendation about possible legal rights, remedies, defenses, options, selection of forms or strategies. Your access to the website is subject to our Terms of Use.

Written by Johanna

May 23rd, 2014 at 8:53 am

Posted in Legal News

The USPTO Refused My Trademark – What Do I Do Next?

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Joe EscalanteHi Joe,

I filled to register my trademark, which is a clothing brand. But, the USPTO refused it due to “Section 2(d) Refusal – Likelihood of Confusion” and “Disclaimer Required.” I don’t know what to do next.

– Gustavo Santana

 

 

 

Barely Legal Radio w/ Joe Escalante

Follow the instructions on the Office action and get in touch with the examiner to clarify how you can satisfy him or her. You have only a few days to respond so get in touch immediately.

Attorney Joe Escalante answers your legal questions for free on our Facebook page every Tuesday and Friday at 10 a.m. PT.

 

Disclaimer: Communications between you and LegalZoom are protected by our Privacy Policy but not by the attorney-client privilege or as work product. LegalZoom provides access to independent attorneys and self-help services at your specific direction. We are not a law firm or a substitute for an attorney or law firm. We cannot provide any kind of advice, explanation, opinion, or recommendation about possible legal rights, remedies, defenses, options, selection of forms or strategies. Your access to the website is subject to our Terms of Use.

Written by Johanna

May 23rd, 2014 at 8:45 am

Is It Legal to Record and Release Conversations?

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Shutterstock/vita khorzhevska

Shutterstock/vita khorzhevska

The lifetime ban of Los Angeles Clippers’ owner Donald Sterling from the National Basketball Association (NBA) has some wondering about when it’s OK to record a private conversation and then release it to the public.

In Sterling’s situation, his alleged mistress, V. Stiviano, recorded a conversation between the two of them in which Sterling made racist comments. The audio was then leaked to some reporters, who published stories about it, pushing the NBA to ban Sterling from the league.

As with many areas of law, whether it is legal to record a private conversation depends on the jurisdiction; federal or state law may apply, and state laws vary. What follows is a quick primer on the basic legalities surrounding the recording of private conversations as well as whether such a recording can legally be released to the public.

The Law on Recording Private Conversations

First, it is important to note that it is usually illegal to record conversations to which you are not a party or could not overhear easily, which means that planting a bug in your boss’s office is a legal no-no.

Aside from that, the most important factor in whether it is legal to record a private conversation is consent. In most states as well as under federal law, recording conversations is legal so long as one party to the call consents. That is, if you are a party to the conversation and would like to record the call, you may legally do so in thirty-eight states and the District of Columbia and also under federal law. These laws are generally called “one-party consent” laws.

Other states require the permission of all parties to a conversation in order for the recording to be legal. These laws are called “two-party consent” laws even though the consent of everyone in the conversation must be obtained even where there are more than two participants.

Note that if a public official, including a police officer, is involved in a conversation, there may be other factors to consider, including special state law provisions.

The Law on Releasing Private, Recorded Conversations

Sterling’s lawyer has stated that Sterling consented to being recorded, so consent is not an issue in that situation, but what about the release of the audio? Stiviano’s lawyer maintains that his client was not the source of the leak of the tape, but regardless, was that legal?

Although one may question the ethics and morals of someone who would leak such a tape, there is no law against either leaking or publishing the contents of the audio.

Accordingly, for Sterling, it would seem that he has no legal recourse regarding the recording or release of his conversation.

Do you think there should be laws against the release of private conversations that have been recorded?

Written by Michelle Fabio

May 21st, 2014 at 8:32 am

Posted in Privacy

Tagged with ,

Corporations Now in the Business of Mentoring Entrepreneurs

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Shutterstock/mangostock

Shutterstock/mangostock

Running a small business in America is difficult, especially because there are big box retailers and large corporations everywhere. The competition is fierce, and it can be hard to get noticed on the market. Now, some big businesses are teaming up with smaller ones and providing them with guidance, advice, and monetary support through educational programs.

According to Joseph Pisani of the AP, companies and brands like Macy’s, Martha Stewart, Boston Beer, and Goldman Sachs are giving small business owners a boost with their free and exclusive training courses.

When the two combine forces, each side reaps the benefits. For example, Psyche Terry, an intimate clothing supplier, participated in The Workshop at Macy’s, which “teaches women and minority entrepreneurs how to get their products into major retail stores,” writes Pisani.

Terry learned what clothing colors are the most popular and how to design her intimates line. Her sales increased 700 percent from 2012 to 2013, and now her products are being sold at Macy’s stores across the country. Macy’s came out of the deal with a great brand story, a giving reputation, and a new product. Terry figured out how to more effectively run her business and gain profits.

Goldman Sachs holds a similar course for entrepreneurs called the Goldman Sachs 10,000 Small Businesses program. Small business owners are told to write out a five-year plan and are given the opportunity to network with participants in different industries. According to Pisani and a survey by Babson College, 64% of the 582 small businesses that have gone through the program “said they increased their revenue six months after graduating and 45 percent added new jobs.”

The investment bank chooses to help out small business owners because it helps them recruit the best talent. Potential employees and recent college graduates want to work with Goldman Sachs because they are philanthropic and giving back to the community. Workers at the company are able to offer wisdom to the entrepreneurs and supply them feedback as well.

Whether the prize is education, a loan, or a chance to showcase products in a big store, small business owners are being given the break of a lifetime by gaining acceptance into these corporate programs. The bigger businesses are acquiring better employees and products, along with respect and admiration from workers and consumers.

Written by Kylie Jane Wakefield

May 21st, 2014 at 8:31 am

The Present & Future of Smart

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Shutterstock/Mile Atanasov

Shutterstock/ Mile Atanasov

With the quick pace of technology, when we think of “smart” often it’s a new device that we envision and not a fellow human. Here are a few items that do more than what you might think.

While seemingly very low-tech, Fast Company introduces us to “The Drinkable Book” by WaterisLife. What’s so smart about a book made only from paper when we’re living in the age of Ebooks? The book informs readers in developing countries about ways to prevent diseases brought about by drinking and using water that is not clean. The special paper pages double as water filters. “Slide one page of the book in, pour water over it, and get up to 5,000 liters of clean water. “

For those of us blessed with plenty of clean drinking water, most of us brush our teeth at least a couple of times a day. But even with diligent brushing, we may wonder if we are doing it effectively. CNN reports on the Kolibree toothbrush, an electric toothbrush that wirelessly connects to a smartphone and lets you know if you have brushed enough. If you like, you can even share the information with friends on social media and your dentist. Or maybe not.

While in the grocery store, you may wonder if you forgot something on your list. Are you out of milk or eggs? According to NBC News, if you have an LG Smart Refrigerator, there’s no need to worry. Just ask your fridge. With HomeChat, you can text questions to find out what is there or pull up the app on your phone to look at the contents of your fridge in real time.

LG’s HomeChat extends to ovens and washing machines too. Looks like we’ll all be a little cleaner and more organized in the near future.

Written by Lisa C. Johnson, Esq.

May 8th, 2014 at 1:32 pm

Posted in Legal News,Technology

Tagged with

The Selfie & Unauthorized Commercial Tweets

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Shutterstock/Jayme Burrows

Shutterstock/Jayme Burrows

In 2013, Oxford Dictionaries picked “selfie” as Word of the Year. In 2014, Ellen DeGeneres’ Oscar selfie may have been the selfie to top all others. The Hollywood Reporter website stated that it’s valued at close to a billion dollars. Her tweet on a Samsung phone was seen by 37 million people according to the article.

Unfortunately, Samsung may have crossed a line when it picked another celebrity to capitalize on a particularly fortunate circumstance. David Ortiz aka “Big Papi” was visiting President Obama at the White House along with his Red Sox teammates to celebrate their 2013 World Series win. Ortiz took the now infamous selfie with the President and tweeted it.

According to The Washington Post, “Samsung retweeted it, saying that the company was ‘thrilled to see the special, historic moment David Ortiz captured with his Galaxy Note 3 during his White House visit.’” President Obama had not been informed that selfie would be used for commercial purposes and was less than pleased. Ortiz had agreed to be Samsung’s “MLB social media insider” the day before the visit.

Business Insider article noted that soon after the Ortiz selfie debacle, the White House asked visiting Olympic athletes to keep their phones in their pockets. Could 2014 signal the beginning of the end of the commercial selfie?

That remains to be seen. But at the very least, before tweeting a selfie or any photo for that matter, brands might want to be more careful with what they try to get away with. A famous pharmacy chain may be learning the hard way.

Adweek reported that actress Katherine Heigl was shopping at a Duane Reade and was photographed by the paparazzi. The store tweeted the image with language stating that Heigl couldn’t resist shopping there. The photo and wording were also used for a Facebook post. According to the article, Heigl did not give permission for her photo to be used for promotion. Further, the store would not delete the tweet or Facebook post after her representatives asked. Subsequently, the actress filed a lawsuit against the store seeking six million dollars in damages.

Ouch.

Written by Lisa C. Johnson, Esq.

May 8th, 2014 at 10:24 am

When You Copyright a Group of Pieces, How Many Can Be in the Group?

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Joe EscalanteHi Joe,

I have an artist question…When you copyright in a grouping of pieces, how many pieces can be in the group?

– Deb Haugen

 

Barely Legal Radio w/ Joe Escalante

You can copyright a collection of drawings, or a group of songs by submitting them together and naming it something like Deb’s Summer 2014 Collection of Notable Bee Keeper Portraits.” This is a great way to save some money in some instances.

However, all the claimants and/or authors have to be the same for each piece. If it’s just you, you’re fine. Or if it’s you and two other co-authors, that’s fine as long as the co-authors are the same on all the pieces in the collection.

The Copyright office doesn’t publicize a limit on the number of pieces that could be on one registration so I don’t know how far you could push this.

Attorney Joe Escalante answers your legal questions for free on our Facebook page every Tuesday and Friday at 10 a.m. PT.

 

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Disclaimer: Communications between you and LegalZoom are protected by our Privacy Policy but not by the attorney-client privilege or as work product. LegalZoom provides access to independent attorneys and self-help services at your specific direction. We are not a law firm or a substitute for an attorney or law firm. We cannot provide any kind of advice, explanation, opinion, or recommendation about possible legal rights, remedies, defenses, options, selection of forms or strategies. Your access to the website is subject to our Terms of Use.

Written by Johanna

May 5th, 2014 at 11:57 am

Posted in Free Joe

Tagged with

Yelp Reviews, Free Speech & Defamation

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Shutterstock/Gil C<br />

Shutterstock/Gil C

It’s no secret that word of mouth impacts business. If you try that new restaurant down the street and feel strongly about it, you’re probably going to tell someone. While many people are on Twitter or Facebook, some prefer to share their views on Yelp. Whether Yelp reviews can be trusted is open for debate. Either way, that delicate balance between the rights of consumers to voice their opinions and the rights of business owners to protect their reputations has become increasingly strained.

The Wall Street Journal reported on a Yelp case that is headed to the Virginia Supreme Court. Joe Hadeed owns Hadeed Carpet Cleaning in Springfield, Virginia. In 2012, he started noticing that his company was receiving many negative Yelp reviews, which had not been the norm. Business and revenue dropped sharply causing him to let go dozens of workers and sell six trucks.

Hadeed believes that several of the bad reviews were fake and sued the review writers for defamation in July 2012. The lawsuit sought the writers’ true identities, but Yelp refused to turn over the names. So far two lower courts have agreed that Hadeed has the right to find out the names of the negative reviewers. Yelp has appealed to Virginia’s highest court stating that the reviews are protected free speech. A judge will soon decide whether Yelp will disclose the names to Hadeed. The implications of this case could be far reaching when it comes to anonymous online reviews.

In New York, there was an interesting twist to the online review scenario. A CBS New York article states that Matthew Brand read positive Yelp reviews for Ron Gordon Watch Repair on Madison Avenue. He took his watch there and was not happy with the service.

Brand wrote his own Yelp review in April 2013 using his name. In March 2014, Brand received a letter from the watch repair shop’s attorney threatening him with a defamation lawsuit if he did not take down his review. Since the threat of the lawsuit, the shop is now getting bad reviews about the threat of legal action and the owner is being called a bully.

For the CBS article, Law professor Leon Friedman was interviewed. He said that reviews are protected speech, but he didn’t think that these types of reviews are libelous if they are just an opinion. Instead of taking the litigious route, he suggests that businesses put a comment on the negative review and tell their side of the story.

Written by Lisa C. Johnson, Esq.

April 30th, 2014 at 9:12 am

Posted in Lawsuits,Legal News

Tagged with

Fighting for the Right to Same Sex Divorce

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rainbow flag by torbakhopper on Flickr (CC license)

rainbow flag by torbakhopper on Flickr (CC license)

The recognition of the right to marry in some states has been an immense step forward for same sex couples, but several jurisdictions that have not recognized that right are now facing another, related legal question: What happens when such marriages don’t work out and the couples want to divorce in their state?

If the couple seeks divorce in a jurisdiction that recognizes same sex marriage, there isn’t an issue as the law provides a framework just as it does for straight marriages. Problems arise, however, when a same sex couple was legally married in one of the states that allows such a union but then file for divorce in a state that doesn’t.

After all, same sex “conscious uncouplings” involve the same issues as straight marriages from dividing assets and debts to, in some instances, child custody and support. So what is a legally married same sex couple to do when they want to split up but don’t reside in a state that recognizes same sex marriage?

This is the dilemma faced by same sex couples around the country, including in Texas, where a district judge allowed a same sex divorce to continue only to see the appellate court halt the divorce and custody proceedings pending further appellate proceedings. Stay tuned!

The most obvious solution in such instances is for the couple to move to the state that granted their marriage (or another state that would recognize their divorce), but logistically that isn’t always possible. Advocates of same sex marriage, though, would argue that it also shouldn’t be necessary as it would be treating same sex married couples differently from straight married couples.

In any event, even if a divorce is recognized out of state, if the couple holds property within a state that doesn’t recognize same sex marriage, there is a serious question as to what would happen to that property, so it may not be as “easy” as picking up and getting a divorce elsewhere.

In addition to the proceedings in Texas, Kentucky and Mississippi also have right-to-divorce cases in progress, and at least one state has ruled that same sex couples have a right to divorce in the state even though, technically, their marriage isn’t legally recognized there. In 2011, the Wyoming Supreme Court granted a divorce to a same sex couple who had been married in Canada.

What do you think of the right to divorce? Should it be universal?

Written by Michelle Fabio

April 28th, 2014 at 10:21 am

Posted in Divorce,Legal News

Tagged with