Quote of the Day - House guests should be regarded as perishables: Leave them out too long and they go bad.
We're Looking For You To Be A Guest On Lawyer2Lawyer On Our Third Anniversary Show
If you're one of our regular listeners and are interested on being a guest on our Third Anniversary Show next week, then give our producer, Kate Kenny, a call at the Legal Talk Network. You can go online, too, to our website and send Kate an email.
Bob Ambrogi and I would love to have you on the show and have a great conversation. Just give us a call at 781-551-9960. We're waiting by the phone.
Lawyer2Lawyer Internet Radio Delves Into The Google/Viacom Privacy Rights Battle
Viacom accused Google's video sharing website, YouTube of violating its copyright in a $1 billion lawsuit. As of last week, Google and Viacom reached an agreement to allow Google's YouTube to mask important user information from records before the handover to Viacom.
Please join me and my fellow Law.com blogger and co-host Bob Ambrogi as we welcome Attorney Kevin A. Thompson from the Davis McGrath LLC law firm, and Lauren Gelman, Executive Director of Stanford Law School's Center for Internet and Society to discuss this case. We discuss the legal issues, privacy rights, piracy issues and what this case means for the users, the source of business for these companies.
Court Of Appeal Strikes Down Class Status For Restaurant Workers Suing Over Breaks
Employers are not required to make workers take breaks, according to the ruling in Brinker Restaurant Corp. v. Superior Court (2008) __ Cal.App.4th __ (a 63-page opinion), just make them available. Here's what the ruling actually says: while employers can't discourage or keep employees from taking rest periods, "they need only provide, not ensure, rest periods are taken."
The opinion reasons employers must only authorize and permit rest periods during a particular time, but they don't have to be in the middle of the day and employers aren't required to provide a meal period for every five consecutive hours worked. Instead, employer need only provide meal periods, but "not ensure they are taken;" and can only be held liable for employees working off the clock if employers knew or should have know they were doing so.
My good friend Mike Walsh believes the case conflicts with prior court opinions, including Cicairos v. Summit Logistics, Inc., 133 Cal.App.4th 949 (2005), and says, "With Brinker and Cicairos presenting such starkly contrasting views on California law, with Brinker presenting so many novel ideas regarding wage and hour claims and class actions, and with so many U.S. District Court cases disagreeing with Cicairos and each other, this case looks like an outstanding candidate for Supreme Court review."
My other good friend, Kimberly Kralowec who was co-counsel for the class that was decertified, is disappointed with the ruling, and says, "I [ ] believe that the new Brinker decision creates a split in authority with Cicairos, and I also believe that the Supreme Court often grants review to resolve issues that are the subject of a split among the lower courts, particularly when two Court of Appeal panels have handed down conflicting published opinions."
One thing we all agree on is that the Supreme Court may likely take up these cases and issue a clarifying ruling. But I must respectfully disagree with my learned colleagues on the conflict between the cases on the issue of whether the conflict arises over both rest periods and meal breaks. I think the conflict only involves meal breaks and the two cases are consistent on the point of rest periods. I've quoted the Brinker language above.
Here's what Cicairos says on rest periods, "Wage order No. 9 contains a section entitled 'Records' in which it lists information that the employer is responsible for keeping. (Cal. Code Regs., tit. 8, § 11090, subd. (7).) It specifically notes, however, that 'authorized rest periods need not be recorded.' (Id. at subd. (7)(A)(3).) '[A]s long as an employer authorizes and permits his employees to take their required rest periods (and clearly communicates this authorization and permission), the employer will not be liable for the rest period penalty if the employees fail to take the full amount of authorized time for their rest breaks, provided that the employees did not forego the full rest period as a result of employer coercion or encouragement.' (Dept. of Industrial Relations, DLSE Opinion Letter 2001.04.02, p. 5.)"
On the other hand, as both Kimberly and Mike correctly note, Brinker takes the position that meal breaks do not need to be recorded, while Cicairos rules they do need to be recorded. Frankly, I've never quite understood the reasons for the difference. If you're not required to record the rest periods, then why should you be required to record the meal breaks? Both are a half an hour. There's really no policy reason for the different treatment.
The real problem is whether the employer has a policy - either overt or hidden - of discouraging either kind of break. If the employees are allowed to take meal breaks and rest breaks without interference, then why isn't that policy acceptable? At some point, employees have to take responsiblity for their own well-being and take a break if they want one, as long as they are allowed to take the breaks either when they want or during a scheduled time.
We'll need a higher court and good reasons to settle this dispute.
Your Day To Play President: Would You Issue A Pardon To Marion Jones?
Steroids and track races don't mix well, as disgraced Olympic medalist Marion Jones found out when sentenced to a six-month prison sentence for using the performance enhancing drugs. She was also convicted of lying to federal agents investigating a check-fraud scheme involving millions of dollars and the husband of her son, and sentenced to two months, which she is now serving concurrently in Texas.
She has asked the President to commute her sentence and issue a pardon. In the past, there have been anywhere from 200 or so to more than 1,000 applications for pardon pending at one time. The process starts in the Office of the Pardon Attorney in the Department of Justice. Surprisingly, many are granted, but you've probably never known any of them.
Nevertheless, Ms. Jones has filed a request for commutation.
Not everyone agrees, however. In fact, the Associated Press reports that the new CEO of USA Track & Field, Doug Logan, wrote an open letter to the president asking him not to commute her sentence. Here's an excerpt from his letter: "With her cheating and lying, Marion Jones did everything she could to violate the principles of track and field and Olympic competition." .. . "When she came under scrutiny for doping, she taunted any who doubted her purity, talent and work ethic. Just as she had succeeded in duping us with her performances, she duped many people into giving her the benefit of the doubt."
I'd love to show you Marion's request, but the Department of Justice hasn't released it yet, as best I can tell. Here are the standards she's supposed to meet, but this year brings us to the close of President George W. Bush's term, and late-term presidents are notorious for issuing clemency or pardon petitions in their waning days.
Since Jones has served most of her sentence already, she's likely looking more for a pardon to clear her name. Time will tell whether this president will honor her wish or the wish of the USA Track & Field CEO.
How would you vote?
What Adds Up When You Combine Trusts, Corporations, Foundations & Offshore Entities?
That's tax evasion, according to the United States Senate Permanent Subcommittee on Investigations, especially if you whip in a couple of foreign banks from Switzerland and Liechtenstein. A report issued by the Subcommittee today blames the loss of billons of tax dollars on this combination.
As most people know, there are two things very hard to avoid: death and taxes.
Even so, the report blames banks and U.S. citizens trying to avoiding taxes by moving money to these offshore banks. Unfortunately for both, former employees of the banks gave up information to the IRS about the banks and the people moving money offshore.
The Subcommittee is investigating and you can be sure the IRS isn't far behind. Big deals aren't just for the rich, however.
Even so, there are some common misconceptions about trusts and offshore entities. It's a legitimate tactic to move money offshore. It's legitimate to shelter your assets from just about everyone but the IRS. You still have to pay taxes. You may be able to use an offshore transfer to avoid a judgment, as long as you do so well before someone sues you.
The government will allow you to do so to avoid judgments and the like, just not income taxes. On the other hand, moving money into a trust will help avoid probate taxes. Perhaps avoid isn't the right term. Delay is perhaps better.
See the third paragraph above about death and taxes.
By moving money into a trust, you can pass assets along to heirs without going through probate because the trust doesn't die when you do. A trust "stays" alive. For asset protection, though, it's almost worthless. Trusts work for delaying taxes, just not for judgments.
As with just about everything else I write, this post isn't legal advice, and whether trusts and offshore banks are appropriate depends significantly on a great number of things I haven't included here. So, if you're in need of asset protection and delaying taxes, talk to your lawyer.
Consider the advice of my accountant: be happy if you're paying a lot of taxes; it means you're making a lot more money.
But I still don't like paying taxes, and I'm guessing you don't either.
Lawyer 2 Lawyer Internet Radio Gets Its Bearings on Bear Stearns
Last week Ralph R. Cioffi and Matthew M. Tannin, both former hedge fund managers for Bear Stearns, surrendered to federal agents and were charged with nine counts of securities, mail and wire fraud.
Please join me and my fellow Law.com blogger and co-host Bob Ambrogi as we welcome Attorney Rich Strassberg, a partner in Goodwin Procter's Litigation Department and chair of its White Collar Crime & Government Investigations Practice, to discuss the details of this criminal case.
We explore the Bear Stearns scandal, look into the criminal charges against the ex-managers, the state of the mortgage market, the evidence in their email correspondence, tackle the topic of white-collar crime and look at what criminally can happen to these once successful fund managers.
Lawyer2Lawyer Internet Radio Talks To Jonathan Zittrain About The Future Of The InternetTo many out there the internet is a necessity, but what will the internet look like 10 years from now? Join my fellow Law.com blogger and co-host Bob Ambrogi as he sits down with Harvard Law Professor and co-founder of HLS's Berkman Center for Internet & Society, Jonathan Zittrain, to discuss his new book, The Future of the Internet - And How to Stop It. Bob and Jonathan will also talk about the 10th anniversary of the Berkman Center and Jonathan's concerns and thoughts on the future of the internet.
City's Potholes May Be More Than A Trivial Defect
Admittedly, potholes are not a frequent occurrence here in Southern California. We don't have the freezing and thawing and snow plows scraping the asphalt off the road like they do Back East. I grew up in the snow, and as a kid used potholes as wintertime foxholes to hide and throw snowballs at one another. Some of those potholes even served as tunnels from one side to another.
But I overexaggerate slightly.
So when the Court of Appeal in the case of Strathoulis v. City of Montebello ruled that a one-inch deep pothole did not constitute a "trivial defect" that the City could use to avoid liability, I had to chuckle. But not too hard.
The front end suspension on my car agrees heartily with this ruling, even though the one-inch deep pothole would barely hold an ammunition-sized stack of cannonball-like stack of snowballs. Here, of course, those snowballs would have melted before I could reach the bottom of the pile. But again I overexaggerate slightly.
All joking aside, our plaintiff Joanne Stathoulis tripped and fell in what the court politely refers to as "shallow holes" in a residential street in the City of Montebello. She filed suit against the City of Montebello alleging negligence for the dangerous condition of its street. She fell, struck the pavement, fracturing teeth and causing lacerations to her face.
The City said it had never received a complaint about the potholes and therefore never repaired them. It denied liability for Joanne's injuries and the trial court agreed and granted judgment for the City. Joanne appealed, and the Court of Appeal reversed the trial court and ruled the City may be liable for Joanne's injuries.
Just to be precise, here's the court's characterization: "[The City Inspector] found three holes in the street, about nine feet from the curb. The southernmost gouge was 20 inches long, with a maximum width of six and one-half inches and a maximum depth of one inch. The middle gouge was 19 inches long, had a maximum width of four and one-half inches, and was half an inch deep. The northernmost hole was 24 inches long, a maximum of five inches wide, and had a maximum depth of one inch. The holes were one to four inches apart."
Potholes, plain and simple, and dangerous ones at that.
So now you know. Finally, potholes can get cities and towns into trouble in California. Now the repair trucks will be out in force with hot asphalt to repair those potholes.
No more snowball fights in the streets, though.