Heather: I have a question… If an employer’s payroll check is determined ‘lost in the mail’, is it the employee’s expense to pay the employer for the stop check fee ($35) so they can reissue a new check?
Joe Escalante: Most courts consider something mailed once it is deposited with the post office. It’s “reasonable” to believe they will deliver it. However, unless there is something in writing that dictates who pays stop fees when this happens, there’s no law to cover it. It’s a Mexican stand off, said the Mexican.
Lisa: I am looking to do a Revocable Trust so I can purchase NFA items, what are the requirements within the trust I need to make sure I have? Also how do I ensure that the items I put into the trust will pass to my minor children once they turn of age?
Joe Escalante: A trust is used to make sure stuff gets to your heirs without going through probate. If you choose a decent trustee to administer the trust, your stuff will go to them when you die. If the trust stipulates that they must be 18 to receive the stuff, the trustee will hang on to it until then. If they turn 18 when you are still alive, just hand it to them, but don’t muzzle them when you do it. Safety first. I’m assuming NFA means National Firearms Act when I make these jokes.
KC: I was wondering if Civil Code Section 45 (Libel) applies to a memorandum sent from one employee in an organization to another in regards to a third party (the one that might have been injured) ?
Joe Escalante: Defamation can occur if only one person hears a false and harmful statement, however, the amount of damages depends on if this memo is public or not. Damages will increase by the amount of people that hear the defamatory remarks.
Alex: What’s the cheapest way to effectively file for bankruptcy Chapter 7 in California ?
Joe Escalante: The cheapest way is to buy a book from Nolo Press and do it yourself. It’s not easy, but people do it.
Ragan: I own my own company. We send people out of town periodically for jobs that we have. If an employee quits while he is out of town, am I responsible for getting him back home? And do I have to pay him per diem for that day?
Joe Escalante: That would all depend on the deal you make with him. You can make a deal to handle these episodes any way you want. Without a deal, you will be governed by minimum standards of fairness dictated by case law and State Labor Commission regulations.
Roy: We have a survey neighbor does not he’s using one from when he owned our property which does not match our deed or easement can I represent myself if he sues don’t have the mint for lawyer
Joe Escalante: You have the right to represent yourself in court. However, if he has a fancy lawyer, it will be a special kind of hell you will go through.
Jeremiah: Me and a partner are staring an online ministry. We hope to be funded by Google AdSense revenue from our web traffic, and from donations from churches and people we meet out in mission fields. We are wondering what we should do to fulfill tax burdens if there are any. Should we incorporate? Start a non profit?
Joe Escalante: This is a good question for the Tax Pros who are here on Thursdays. In the meantime, please enjoy your theme song: http://www.youtube.com/watch?v=mkw2Nv1env8
LegalZoom: Ask the Tax Pro details: http://zoo.mn/AskTheTaxPro
Lita: Can I obtain LLC in 2013 and use that status for tax filing for 2012?
Joe Escalante: That sounds like a question for the Tax Pros here on Thursdays. Until then, please enjoy the Ballad of Jeremiah Johnson. : http://www.youtube.com/watch?v=mkw2Nv1env8
LegalZoom: Ask the Tax Pro details: http://zoo.mn/AskTheTaxPro
Julia: What should you do if you miss filing a year of corporate minutes?
Joe Escalante: If you are in the middle of some nasty litigation that could be a problem. Someone could use it to say your corporation is a scam. However, if that is not the case, you can take care of this stuff retroactively. Some people do it on the courthouse steps, as they say.
Mary Ellen: I own property in the area of the Marcellus shale cracking in Pennsylvania. Can I sell the property but still retain my mineral rights?
Joe Escalante: People do that all the time. Get a lawyer in your area familiar with splitting off mineral rights.
Shon: are living trusts with legal zoom really as good as hiring a lawyer?
Joe Escalante: It’s a balance test. And it depends on how complicated your estate is. I know many people who have created their trusts with Legalzoom and I can say those trusts that I have seen created are really as good as they would have been if a lawyer was used, or better, depending on the lawyer.
Enrique: How do I get my “rap shet” from the FBI..? it’s for a government job.
Joe Escalante: You do this by writing letters requesting copies of your file, if one exists, to the Federal Bureau of Investigation, 935 Pennsylvania Avenue, NW Washington, D.C. 20535-0001. Or you can try this place:
John: Can a friend of the court attorney be forced to comply with michigan law regarding passport withholding – which he justifies based on arrearages. Law states that passport can be released once payment arrangements are made.
John: Are verbal ontracts legally binding in California
Joe Escalante: Yes. All you need is evidence of a deal. Offer, acceptance, and reasonable consideration (payment). Only in rare cases like real estate and copyright must it be in writing. However, writing is excellent evidence of a deal. Both parties acting as if there is a deal is also good evidence.
John: So if i had a deal to buy a boat and a car, made payments in good faith for nearly a year, and the guy suddenly says forget it – its all a non refundable deposit…I have grounds to sue
Joe Escalante: Yes, in that case, a writing wouldn’t be necessary. You have your testimony as to what the deal was, and you have evidence that “both parties were acting as if there was a deal.” That is as good as a writing in my book. Good luck.
Rosemarie: A colleague has abandoned cosmetics about a thousand dollar value ,have requested pick up for 4 months and ignored? When may I dispose items legally please?
Joe Escalante: There’s no hard and fast rule in these cases. It all depends on the “duty of care” a court would assign the “bailment.” In other words, what is fair? If you offered to hold them for her in exchange for some other favor, you would have a higher duty of care. If she threw them at your head, and then ran away and left them there, you would have a lower duty of care.
Shaq: What torts are associated with product liability?
Joe Escalante: What is this law school? Anything that is a civil wrong, caused by a product could be a tort in that area. The ones that come to mind are negligence and wrongful death based on defective product design or manufacture.
Genie: When and how will I be notified if foreclosure and how many days until I must vacate my home?
Joe Escalante: You get notified by mail from the bank if they are foreclosing on your home mortgage. They will give you a stated amount of time to vacate but few people pay attention to that. Unless you get an unlawful detainer action filed against you, you can stay there. When you get one, you go to court and file an answer and tell them you need a certain amount of time and see if the judge will give it to you.
Bianca: Hi Joe, I was reading my papers from LegalZoom and it states that I have to place an ad in a local paper to I assume to “announce my business” I live in NY, and formed an LLC I don’t really want to do it why is it a requirement? Thanks
Joe Escalante: An LLC is a faceless entity. To protect consumers, the Secretary of State requires some transparency like filing your real name with the state, and publicizing that you are going to do business under this fictitious business name. I agree it’s lame because who reads these? You’d be better off announcing it on Facebook, but that day will come. For now, you have to pay these otherwise worthless papers to announce it.
Ladaryl: First of all, Hope you’re having a fantastic Friday, Joe.
Now, is there any kind of way one can get their record expunged, or sealed… (What’s the difference?) for free?? Is it really worth doing, will potential employers still see your felony?? Note: I currently reside in Arkansas. What’s the deal with “CORI” laws??
Thanks, in advance.
I ♥ LegalZoom.
Joe Escalante: Sealed would just hide the details of an arrest or conviction. Expungment would remove the felony from your record. You have to sit down with a criminal defense attorney to figure out how to do it in your state. Or you can call the Attorney General’s office and start bugging them about how to get the process started on your own. It can be done, but it’s an uphill battle. The state has to balance your interests against the public interest of knowing who the felons are in the state.
Eric: I am currently building a website for a non profit organization. In one section of this site we have videos posted that we get off of YouTube. Can I legally use these videos without having permission from the person who originally posted the video on YouTube.
Joe Escalante: If you are just embedding the videos into your site, you are just advertising the video and when people click it, they are actually watching it on Youtube, not your site, so that’s fine. That is what Youtube is for. If you rip the video from youtube, and re-post it so people are watching it on your site, that is a copyright infringement, so just don’t do that.
Anthony: How are salaries incorporated into Nonprofit orginazations?
Joe Escalante: They are an expense of the company, like paying for the trash to be taken out. They just have to be reasonable and competitive in the industry your are in.
I have a city walking trail being developed right beside my home, 10 feet from my property line. Can I ask a judge to stop development until we have assurances fro£ the city that our privacy will be protected in basement living areas?
Joe Escalante: This would be done by filing an injunction against the city. People do it all the time.
Kyle: What is required to LLC a business? Is it expensive?
Joe Escalante: It’s expensive if you use an expensive lawyer. If you use Legalzoom, it’s going to be a lot less. Make sure you have a good tax pro on board to advise you if an LLC is right for you. If so, Legalzoom is an excellent way to get one completed.
Not long after the death of Nelson Mandela came speculation about the settling of his estate — and early guesses are predicting a battle among his heirs.
Mandela was married twice, first to Evelyn Mase and then to Winnie Madikizela, leaving behind “more than 30 children, grandchildren and great grandchildren,” according to Reuters, which could mean a long, drawn-out, and potentially contentious struggle over Mandela’s estate and legacy.
Before his death, Mandela set up various trust funds and charitable foundations, the control of which may be in dispute among heirs who were not involved or included in Mandela’s planning. The future use of Mandela’s name, likeness, and image are also possible points of contention, particularly as two of Mandela’s granddaughters have already developed a reality show (“Being Mandela”) while other heirs have ventured into various businesses from clothing lines to wine labels.
The exact value of Mandela’s estate is unknown, but between properties, book sale royalties, trademarks, copyrights, and brands, there is certainly plenty to fight over — for those who might choose to do so. One of the primary components of the estate is the Nelson Mandela Foundation, which currently owns various intellectual property related to the Mandela brand and reportedly earned about $2.2 million in 2012.
When Mandela fell ill in the summer of 2013, reports surfaced that he had created a handwritten will in 1996 that expressed his desire to buried in Quru, the rural village in which he was born; there has been no report that a subsequent will was ever drafted or what other provisions a Mandela will might contain.
As with many estate contests, a major issue will likely be whether Mandela was competent, of sound mind, and not unduly influenced when signing key estate planning documents — and all this means that eventually, a judge may end up having a major say in Mandela’s legacy as well.
Mess with a bike gang, and land yourself a legal battle.
It’s as if the notorious Hells Angels have traded in their leather jackets for blazers and ties after racking up over a dozen cases in federal court to protect their brand. The more popular they became since the group’s inception 65 years ago, the more noteworthy their symbols became.
Now, the Hells Angels have shifted gears from physical confrontations to those fought in a courtroom. Their actions have underscored how relevant—and lucrative—a successful and well-protected brand can go for any organization.
“We stabbed and stabbed people left and right in the day, but that way is less common now,” Richard Mora, known as Chico, a Hells Angels member in the Phoenix chapter, told The New York Times.
Most of their lawsuits were settled on favorable terms, The New York Times reported, pursuing Hells Angels’ ultimate goal to get other groups to stop using the trademarks or destroying and recalling merchandise and, in a few instances, pay some damages.
Back in October, the Angels sued rapper Young Jeezy’s clothing line, 8732 Apparel, arguing his company lifted their trademark logo for their own threads. They also moved to sue famous skater and clothing designer Rob Dyrdek last year for virtually the same thing.
The club also sued companies like Marvel Comics, which named one of its characters Hell’s Angel, as well as Company 81, a clothing brand, for using the official Hells Angels number (8 standing for “H” and 1 for “A”).
“The intent is not just to punish the infringers but to educate the public that the Hells Angels marques are well guarded and not generic and that they must not be infringed upon,” Fritz Clapp, the club’s lawyer, recently told The New York Times.
And according to a GQ report, the Angels have conducted their legal battles in a civil, non-violent way.
Hells Angels head Sonny Barger said, “We don’t let anybody use it but us,” Hells Angels head Sonny Barger told GQ. “And should someone try? “I wouldn’t ask them, I’d take it.”
Hells Angels code has kept the death’s-head patch logo exclusive to only its full-time members. They even went as far as trademarking the look and have fought hard to protect it.
But they did not stop there.
Hells Angels pushed their product onto the public in years past, introducing new lines of merchandise anyone can purchase on club websites or at official events. They have already rolled out retail items sporting their trademark-registered logos on things like beanies, cigars, window decals and T-shirts, to name a few.
Third time’s a charm, unless you’re Rupert Murdoch.
Murdoch, the 82-year-old recently named the 91st richest man in the world, just closed a deal with his third ex-wife Wendi Deng Murdoch, 44, ending their 14-year marriage after initially filing in June.
“We are pleased to announce that we have reached an amicable settlement of all matters relating to our divorce,” the couple said in a joint statement. “We move forward with mutual respect and a shared interest in the health and happiness of our two daughters. We will not comment on this any further.”
But they didn’t need to comment any further. The final settlement was released on the first of December with Deng walking away with their $44 million New York apartment. Her divorce settlement also landed Deng her former husband’s pad in Beijing and one of his two coveted yachts.
That’s not to say he lost it all. Murdoch, who already has four adult children from previous marriages, was able to hold onto most of his greatest assets, including his major institutions such as News Corp., most of his homes all over the world, a yacht as well as his private jets.
New York chapter president of the American Academy of Matrimonial Lawyers Michael Stutman told Yahoo! News that New York has become a hotspot for high-end couples such as Murdoch’s to untie the knot.
“It’s favored not only for the deference it gives to prenuptial agreements, but also because it’s one of only a few states where the divorce filings are not open to the public,” he said in the report. “You can’t go to the county clerk’s office and pull out the Murdoch divorce file. In California, it’s all public record. All the juicy stuff is there.”
Reports outlined their final court proceedings as quick and seamless, which Stutman said could partly have been attributed to the couple’s prenuptial and postnuptial agreements. That’s also why they might have chosen to forgo a trial and move ahead with a speedy settlement.
“I’m glad you’ve been able to resolve these matters amicably,” Judge Ellen Gesmer told the cordial and collected couple at their settlement, the LA Times reported. “Good luck to both of you.”
The specific terms of their split, however, were sealed, as New York remains one of the few states nationwide where divorce filings are kept private and out of the public eye.
Since New York is defined as an equitable distribution state in marriage law, all assets are typically distributed in a somewhat equal fashion, unless a prenuptial agreement declares otherwise. Legal experts have historically favored entering into prenuptial agreements to avoid any ugly proceedings if the marriage fails.
In Murdoch’s case, that seemed to help move things along, which made sense, seeing as it was the third time the billionaire said, “I do.” Murdoch’s second divorce with Anna Maria Torv in June of 1999 saw his former bride walking away with a $1.7 billion settlement—one of the largest in history.
Those living in the Boston area of Massachusetts may soon reap the benefits of an increase in locally grown food thanks to Article 89, a new zoning measure. Back in January 2012, the seeds were planted to make it easier for those interested in urban agriculture. Farmers, farming advocates, food industry experts and Boston neighborhood representatives were all part of the effort.
After 17 meetings of a working group and 11 neighborhood meetings, by the summer of 2013 it was clear that Boston was on board. Some key provisions regarding urban farms state the following:
• Up to 1 acre ground level farms will be allowed in all zoning districts
• Up to 5,000 sq. ft. roof-level farms will be allowed in all zoning districts
• Rooftop greenhouses will be allowed in institutional, industrial, and large scale commercial zoning districts, and conditional in all other districts
Once Article 89 is finalized, there will help available for those needing assistance in understanding the new requirements. A November 14, 2013 Board Meeting Memo states that a user guide will be issued summarizing Article 89. Also, the Mayor’s Office of Food Initiatives will be partnering with Harvard Law School’s Center for Health Law and Policy Innovation to further assist in explaining the process.
The next step on the way to finalizing Article 89 is a hearing before the Boston Zoning Commission scheduled for December 18, 2013. While this particular initiative is new, the concept of urban farming is not new to the city according to a Boston.com article.
“The Dudley Greenhouse is a fully operational, 10,000 square-foot greenhouse on Brook Avenue in Roxbury, owned by the Dudley Street Neighborhood Initiative and run by The Food Project. It is one of Boston’s original urban agriculture projects.
In 2004, the Dudley Street Neighborhood Initiative acquired the abandoned Brook Avenue Garage from Dudley Neighbors, Inc., with plans to transform the lot into a greenhouse to facilitate local food production and build a hub for community education. Then, in 2010, the Dudley Street Neighborhood Initiative partnered with The Food Project — and the community farm that is the Dudley Greenhouse was born.
“It was an absolutely natural fit,” said Travis Watson, senior organizer and communications manager at the Dudley Street Neighborhood Initiative. The neighborhood had both the demand and the need, said Watson.”
In an unprecedented step, Los Angeles became the first city to outlaw the use of bullhooks by elephant trainers in traveling circuses, according to the Los Angeles Times. The City Council voted to give circuses three years to change their practices or remove elephants from their shows altogether.
Bullhooks are sharp-tipped tools that critics say inflicts pain. Other tools such as ax handles, pitchforks and baseball bats were also banned.
In a statement for the LA Times, PETA spokeswoman Julia Gallucchi said, “This is a huge win for elephants.”
During the deliberations at City Hall, evidence from L.A. Animal Services and PETA were taken into account. Last July, the former visited the Ringing Bros. while it was performing at Staples Center and found no violations or signs of abuse. However, in the PETA video, played by Councilman Paul Koretz, an elephant was hogtied in a pen for training purposes and another was crying from distress.
Feld Entertainment Inc., which owns Ringling Bros. and Barnum & Bailey, defends its practices and calls the bullhooks “elephant tools.” This year alone, 90,000 LA residents attended a Ringling Bros. performance, the company says.
The three-year grace period was put into effect in order to accommodate Councilman Gil Cedillo’s “friendly amendment,” according to the Daily News. The councilman claims that it would preserve the jobs of local workers at Staples Center who assist the circus when it makes stops in town.
Though some of the activists who showed up to the hearing were upset, yelling “Three more years of torture!” actress Lily Tomlin, an activist herself, tried to reassure them.
“We’d like it to be stopped this hour,” she said, according to the LA Times. “But it can’t be and it’s going to be done this way. We’re grateful for any kind of movement at all.”
What do you think? Will this ban affect the tens of thousands who go to the circus each year?
‘Tis the season for ordering gifts. Hopefully none of your purchases will leave you in a situation like that of Salt Lake City, Utah couple Jen and John Palmer.
As reported by ABC News, John ordered a desk ornament as a Christmas gift for his wife from KlearGear.com five years ago. Because of a problem with the order, she never received the item and wrote a negative review about the company on the website RipOffReport.com.
As a result, KlearGear.com considered the money owed to them as a debt and reported it to at least one of the credit agencies. The couple has had problems with their credit since then, including being unable to receive financing to buy a new furnace. They and their young son were without heat for three weeks until they were able to save up to buy it.
After the Palmers’ story went public, they received some help. Scott Michelman, an attorney with Public Citizen Litigation Group, is now representing the couple and sent a letter to KlearGear.com asking them to correct the reports of a debt to the credit agencies and seeking compensation of $75,000 for the couple. Attorney Michelman has given a deadline of December 16, 2013, for a response or else he plans to file suit.
It’s worth noting that Michelman has seen other companies try to do similar things to prevent negative reviews.
“So these contracts are ‘take it or leave it.’ They are not negotiated between parties of equal bargaining power,” he said. “A consumer going to a website to buy a product may not see or read through the terms of service by clicking ‘I agree.’”
Michelman also said that the “non-disparagement” clause was not even on the website when John Palmer placed his order in 2008.”
Robin Thicke has sold six million copies of his song, “Blurred Lines.” This past summer, the hit topped the Billboard charts for an unprecedented 16 weeks.
It’s clearly been a great year for the R&B artist and his co-writers Pharrell Williams and “T.I.” Clifford Harris Jr. There’s only one problem: the song is a blatant rip-off of Marvin Gaye’s “Got to Give It Up,” claims the Gaye family in a new copyright infringement lawsuit.
On October 30th, two of Marvin Gaye’s children, Nona Marvisa Gaye and Frankie Christian Gaye, formally filed the lawsuit. It alleges:
A.) “Blurred Lines” has a similar signature phrase, vocal hook, backup vocal hook, variations, and keyboard and bass lines as “Got to Give It Up.” Also, both songs include “departures from convention such as the unusual cowbell instrumentation, omission of guitar and use of male falsetto,” according to CNN and musicologist Judith Finell, who is quoted in the lawsuit. The Gaye family is using quotes from music journalists who claim that the songs sound similar, as well as quotes from Thicke himself, who said in an interview that he wanted to make a song like “Got to Give It Up.”
B.) Thicke stole from “After the Dance,” a Gaye song from 1976, for his tune “Love After War,” recorded in 2011. The two songs, the lawsuit alleges, “contain substantially similar compositional material in their choruses, including the melodies of their hooks,” according to CNN.
C.) Sony/ATV Music Publishing’s EMI should have pursued a copyright infringement lawsuit against the “Blurred Lines” writers in order to protect Gaye’s musical legacy, according to Yahoo News. It states that intimidation tactics were used to try and stop the family from filing their lawsuit.
While “Blurred Lines” was topping the charts this summer, people started to point out the similarities between it and “Got to Give It Up.” Back in August, Pharrell and Thicke “filed a preemptive suit in August, claiming the summer smash did not infringe,” according to the Washington Post. It stated that the songs had some popular music elements in common, but that was it.
In the countersuit, the Gaye family states that they would like $150,000 for every copyright infringement found, as well as profits from both “Blurred Lines” and “Love After War.” They are also looking to block Thicke, T.I., and Pharrell from using any more of Gaye’s musical elements in “Blurred Lines” or additional songs.
Small businesses are susceptible to scams because scammers assume that owners don’t know any better. Entrepreneurs just starting out may, in fact, not be aware of the scams that are frequently targeted at small businesses.
To protect yourself and your business, here are some of the top scams that you should look out for and avoid whether you’re a new or seasoned small business owner.
The Sham Award
According to Open Forum, one of the biggest scams that occurs to small businesses involves a fake award. The scammer will reach out to a small business and express that they’ve won an award for their work. The catch is that the scammer will ask for a partial or full payment for the award and then charge a credit card yearly “membership fees.”
If someone calls your business and requests payment for any type of award, beware. Google the name of the organization and you’ll most likely find complaints from other small business owners.
The “Yellow Pages”
Scammers will call up small businesses and ask for someone to confirm the business’ address, phone number, e-mail, website and other contact information. They will say they are from an online directory like The Yellow Pages, and then some time later, a bill will come in the mail for the listing. Though the owner never agreed to the charges, the scammer cuts together the audio to make it sound as if there was confirmation.
If someone calls your business and asks you to confirm any type of information, don’t. Hang up on them immediately and report the scam to the BBB with the phone number that the scammers called from.
When scammers pretend to purchase products from small businesses, they will send a bogus check for more money than required. That way, they will receive a check for the difference and get to keep this money and the products.
Never accept a bigger check than necessary from a client—return it right away and then ask for a new check for the right amount of money. If a client is rushing you to cash it, it’s probably going to bounce.
Scammers will say they are representatives from a financial institution and offer to invest in small businesses. The first step, though, is for a small business to “qualify.” This takes a substantial amount of paperwork as well as fees and in the end, there are no investments made.
Stick to your own investors and banks. No one is going to come to you and make you pay for applications if they’re really interested in investing in your business.
Bitcoins and other digital currency websites are under scrutiny from The North American Securities Administrators Association because they are feeding grounds for scam artists. They are threats to investors and can prove to be detrimental to a business’ funding.
Stick to investors who have real sources for funds and not Bitcoins or other digital currencies. You never know who is lurking and looking to take advantage of you on those websites.
Last month, at 71 years of age, Lou Reed died from complications of liver disease. But that was not the end nor how his fans will remember him. A few weeks later in Lincoln Center, several hundred fans gathered together to celebrate his life and music. The New Yorker article said that Reed’s widow, Laurie Anderson, was there too.
“It was a cold, brilliantly sunny day. There were no speeches, no visuals—just people, trees, and tall poles with powerful speakers mounted on top. Beige chairs were set up in diagonal rows, and people of all ages, in black overcoats, leather jackets, sunglasses, knitted hats, and berets, sat in the chairs or along the wall or stood, leaning against trees, nodding their heads, looking at one another, gazing up at the leaves. Many took pictures or video. The bright sunlight was dappled under the flaking branches, extremes of light and shadow adding to the unreal, happy strangeness.”
According the New York Post, Reed left Anderson, their home in the Hamptons, a Manhattan apartment, all his personal property, his touring company Sister Ray Enterprises, plus 75 percent of his estate. The remaining 25 percent of his estate was left to his only sibling, Margaret Reed Weiner. Weiner was also given a $500,000.00 bequest to care for their 93-year-old mother.
In Reed’s will, he wrote, “It is my hope and desire, without imposing any legal obligation, that my said sister will use a portion of this cash bequest to help care for our mother, Toby Reed, for the balance of her life,”
Love for Reed from his family and fans will no doubt last long into the future. A biography about him is in the works, according to a Billboard article. Music writer Anthony DeCurtis is slated to write the book, though there isn’t a known release date or title yet.