Quote of the Day - I notice increasing reluctance on the part of marketing executives to use judgment; they are coming to rely too much on research, and they use it as a drunkard uses a lamp post for support, rather than for illumination.
SoCal's Marketing Partner Forum Podcast Of Seminar On Blogs, Podcasting and Webinars
MIPTC was part of a stellar panel of law bloggers at today's Marketing Partner Forum in Carlsbad, just north of San Diego, and below is an hour-and-a-half podcast of the seminar, From Blogs to Podcasts to Webinars to Wireless Content: What's Fact and Fiction?
I'm off to a faculty reception and dinner, so I'll add more to this post later. On the panel with me were Larry Bodine, Marketing Consultant and host of the LawMarketing listserv, David Bowerman, Preston Gates & Ellis LLP, J. Daniel Hull, Hull McGuire PC, Patrick J. Lamb, Butler Rubin Saltarelli & Boyd LLP, and Vicki Spang, Director of Marketing, Sheppard, Mullin, Richter & Hampton LLP.
Well, here's the later: this podcast includes some of the brightest lights in blogging - yes, certainly there are others who could have been there but weren't - but the thoughts of those who were offer some of the best observations on these new technologies. You'll learn a lot if you're about to get into blogging, podcasting or webinars. Give a listen!
Lawyer 2 Lawyer Internet Radio Deposes General Counsel
Yes- We Have A New Name: Coast to Coast Is Now 'Lawyer 2 Lawyer'
Bombarded by technology and issues of backdating stock options and fraud, how can General Counsel be an expert in everything? In this show, we discuss the popularity of hiring part-time GCs and the new role of the GC as the ‘superhero' of the company.
Join me and my fellow co-host and Law.com blogger Bob Ambrogi as we turn to the experts, John J. Isaza, Esq. the principal of Isaza Consulting. LLC in Newport Coast, California and Stuart Blake, co-founder of The General Counsel, LLC also based in Newport Beach, to discuss this topic. Don't miss it!
P.S. Yes, we changed our name. Really! We're now "Lawyer 2 Lawyer." New logo graphics to follow shortly, along with the other accouterments of our name change.
The Dance Between Selling Property And The Subdivision Map Act
Can you sell real property that would otherwise require a parcel map before that parcel map is recorded? No - under the Subdivision Map Act - according to California courts in the case of Black Hills Investments v. Albertson's.
Here's how it all got started: Apparently, Albertsons sold two parcels to Black Hills, which then decided that it didn't want to buy, and sought its deposits back. It also started looking for a way out of the Purchase and Sale Agreements to buy the properties. Under the terms of the contracts, Albertson's was required to record a parcel map on the larger parcel so it could sell the two smaller parcels to Black Hills.
Unfortunately for Albertson's, there was a contract provision that allowed it to unilaterally waive its obligation to record the parcel map if it was unable to gain goverment approval to subdivide the larger parcel prior to the closing date.
Tsk, tsk, tsk, said the court. The Subdivision Map Act requires parcel maps to be recorded before smaller properties can be sold out of a larger parcel, and there's no exception to the exception. You can, however, enter into an agreement to sell undivided property, but you have to record the parcel map prior to the closing date.
Albertson's didn't, and consequently lost the sale of the two parcels.
Forget $600 Hammers - How About A $500 Damage Limit To Cover A $1.8 Millon Loader?
How does a $1.8 million Air Force truck that can hold 60,000 pounds qualify as a "package" subject to a $500 limit for damage during shipment from the US to a foreign country on the open seas?
When the government says it does.
Apparently the Air Force wanted to move seven of its Halverson Aircraft Loaders (a.k.a. "K-Loaders") from the United States to Oman, and hired Maersk, a shipping company, to put the trucks in the cargo hold of a ship and send them to Oman. The Air Force even provided the contract to Maersk that would govern the terms of the shipment.
One of the K-Loaders sustained over $30,000 in damage during the long voyage, and when the Army made a claim for the damage, Maersk responded that its liability was limited to $500, per the terms of the contract.
The issue turned on whether the K-Loader was a "package" under the terms of the contract. Here's how the analysis goes that defines the term package: "a class of cargo, irrespective of size, shape or weight to which some packaging preparation for transportation has been made with facilitates handling, but which does not necessarily conceal or completely enclose the goods. Next, a court should examine the parties' contract for carriage to determine whether the parties intended the goods to constitute a package."
Other courts look at things the same way: here's the key language: "In this circuit, a carrier may take advantage of COGSA's $500 liability limit if the shipper is given a fair opportunity to opt out of that limitation by declaring a higher value and paying a correspondingly higher freight rate. See Mori Seiki USA, Inc. v. M.V. Alligator Triumph, 990 F.2d 444, 448 (9th Cir. 1993)."
In a 26-page opinion in this situation, the court likewise held that the K-Loader qualified as a "package," and that Maersk's liability to the Air Force was limited to $500, despite the more than $30,000 damage to the K-Loader.
Thank god the thing didn't fall overboard or all seven of them sink with the ship.
Unequal Application Of Tax To Water Rights Holders Declared Unconstitutional
Some four years ago, the State of California levied small, three-cents-per-acre-foot water usage fees on some 7,000 family farmers, and succeeded in collecting some $20 million. That fee was just overturned by the court as unconstitutional, and the State Water Resources Control Board must now refund the fees.
Proposition 13 just struck another blow to regulatory fees applied to those who hold water rights in the State of California. You remember Prop 13 - it was a Constitutional amendment that limits real property (land) tax rates and assessments, and places restrictions on state and local government's power to tax real property.
You wouldn't think that Proposition applies to water rights, but while water rights are a real property right, here we're talking about regulatory fees, which is an exception to the tax restrictions of Prop 13. You know the government - if they want revenue, they'll just call a tax something else. Given the exception, the fees imposed can't exceed the reasonable cost of providing services necessary to the activity for which the fee is charged and can't be levied to bring in revenue to the agency.
The California State Water Resources Control Board asked the California Board of Equalization to tax (er, excuse me, exact annual regulatory fees) on water rights held by water rights permits and licenses, including those who simply entered into a contract with those who held the water rights. Most of the holders of these rights were in the Central Valley of California, and the small fee quickly added up because of the amount of water used.
The case, California Farm Bureau Federation v. California State Water Resources Control Board, turned on two issues: the unequal application of the fee (only 40% of the water users were being taxed) and the lack of direct application of the fee charged by the government to the benefit provided by the government.
In other words, it was just a tax, and not everyone was taxed.
Child Born Out Of Wedlock Entitled To Share In Father's Estate, Even Without A Will
What happens to a child when his father dies without a will, and doesn't actively get involved with the child's life? According to a recent case here, In re: Estate of Burden, the child is treated the same as children who are acknowledged as his children.
According to the facts of our case, Gregory Burden fathered a child, Dale Agnew, out of wedlock, in 1971. The child, Dale, met Gregory's mother and siblings, and spoke to his father Gregory for the first time when he turned 18. Dale eventually developed a close relationship with Gregory's relatives, but Gregory stated that he did not want to be part of Dale's life. Gregory never responded to any of Dale's overtures, but also never denied being Dale's father. Later, Gregory died without a will, and a probate court found that Dale was entitled to the same equal share of Gregory's estate as was Gregory's other biological child, Dale's half-sister Tara.
This scenario has some similarities to James Brown's situation with two major differences. James Brown had a will and he died in Georgia, not California. He had seven children, six of whom were mentioned in his will. James Brown's youngest child wasn't mentioned in his will. In California, as it appears that it is in Georgia, a child not mentioned in a will is out of luck.
That's why lawyers encourage their clients to update their wills and trusts as major life events occur. Sometimes they even make provisions in wills for children born after the will is written. But the better practice is to keep your will and trust up to date.
Give your lawyer (or this one) a call. Your family will be glad you did.
Legal Thriller Nominated For Edgar Allan Poe Award
MIPTC's regular readers know that I'm a fan of Paul Levine's writing, and especially his Solomon v. Lord series. Drum roll, please: the Mystery Writers of America just nominated Paul for a 2007 Edgar Allan Poe Award in honor of the writer's birthday on January 19, some 198 years ago.
Congrats to Paul. In an email announcing the nomination, he said, "It only took 10 novels to get my first Edgar nomination. If it takes another 10 to win one, they'll have to award it posthumously." Let's hope not. Keep up the wonderful writing, Paul.
Coast to Coast Internet Radio Plugs In E-discovery Experts
Most recently, several major companies have found themselves being investigated by authorities and many of them are discovering that they are losing the battle on how they handle their emails and important corporate documents. In this show, we will be discussing the recent issues plaguing companies and firms, the power of e-discovery, the world of limitless legal technology and the revised FRCP.
Please join me and my fellow co-host and Law.com blogger Bob Ambrogi as we welcome e-discovery experts, Attorney Thomas I. Barnett, Special Counsel for Sullivan & Cromwell, Michele C.S. Lange, staff attorney in the Electronic Evidence Services group at KrollOntrack Inc. and Attorney Craig Ball, writer for the Law Technology News' column, "Ball in your Court." Don't miss it.