Beitchman & Zekian Blog
Legal Information in Plain EnglishHindsight is 20/20
I had the pleasure of sitting in conference room with a client yesterday for 4 hours trying to settle a case during court ordered mediation.
While sitting waiting for the mediator to come back with the counter offer on the settlement, I looked at the “contract” that started the whole mess again. It was clearly written by a non-lawyer and, since I had time to kill, I had to ask him why, if he’s got a firm of lawyers who he calls on a various other inconsequential matters, did he not call us to review this piece of paper. His response was that they were in too much of a hurry to get the deal done and start working with the Plaintiff and didn’t what to put the brakes on the deal by getting lawyers involved.
Now, I realize that time is sometimes a factor and businesses don’t want to invoice lawyers because we start nitpicking and arguing over whether it should be “and” or “or” in the sentence. Believe it or not, sometimes it DOES make a difference. In this case, the difference between that document and the one I would have written would have protected them as opposed to opened them up to litigation.
Other times I’m told that they didn’t want to pay our hourly fee to have the deal reviewed because they thought it was fine. Well, it is until someone breaches the agreement, which is what happened in this case. Before I could start my lecture, the client admitted that he should have had us look at that agreement, regardless of how much he would have paid. Because now, it cost him more than $20,000 PLUS our hourly litigation fees to settle this case that could have been avoided had the agreement been drafted properly in the first place.
So, whether you are a multi-million dollar company or a small mom & pop shop, you should have an attorney review all documents you sign. Sure there is a cost involved, but if you do your research, you’ll be able to find an attorney that suits your needs, both legal and financial.
‘Tis the Season…for Con Artists and Scams
It seems that in light of the rough economic circumstances, more and more con artists and scammers are finding ways to take what little people have with get rich quick schemes. No one is immune – just this week I was subjected to the famous South African bank account email. Apparently I could receive 25% of $37,000,000 that sits unclaimed in South Africa if I’d kindly send my pertinent information to a generic email address.
Now, reading that, I’m sure you’re thinking, “Of course that’s a scam. You’d have to be stupid to fall for it.” Well, not all scams are that blatant. My brother, just graduated from college, was job searching and found a job as a production assistant for a film that was about to shoot in LA. They offered a flat salary for one week’s work, gas & mileage, and per diem. They would even pay him up front and sent him a check for $3,000.00 when the pay was only $1,500.00. Here’s the catch: my brother was told the director didn’t have a bank account and as the PA, could he deposit the check into his account, withdraw the cash, keep his share, and send a money order to the address enclosed.
Lucky for him, he was smart enough to ask big (attorney) sister if that was kosher. Taking one look at the obviously fake check, I called the bank to verify the funds and was told there was no such account. We turned over the fraudulent check and sent over the correspondence too in hopes that these scam artists would get caught. Had he not asked, he would have cashed the check and sent $1,500.00 out, but when the check got returned, would be on the hook for $3,000.00!!
Young, old, college grads or not, all people are susceptible to fall victim to scams because, for the most part, we don’t want to be jaded, cynical, and distrustful. We all want to believe people are good and aren’t always looking for an angle.
But here’s a few tips, especially during the holidays when heartstrings are easily pulled:
1. Verify the source. If someone is asking for donations, ask for the tax ID number of the non-profit they’re collecting for or call the main office; this not only protects you, but it ensures that legitimate charities are not tarred with the same brush as the shysters.
2. If someone asks you to sign documents, take them to an attorney. It isn’t very expensive to have documents reviewed and spending a little now will eliminate having to spend a lot later. If you do get caught up in a scam, report it to the local police right away and, if possible consult with an attorney – you may have some legal recourse.
3. Remember, if it sounds too good to be true, it probably is.
Happy Holidays!
Contractual Arbitration Clauses…Or How Charlie Sheen Got Kicked Out of Court and Into Private Dispute Resoltuion
The events in Charlie Sheen’s life have become very public, for better or worse. Regardless of your opinion of what is going on with him, the latest legal maneuverings by his attorneys and those of his opponent have provided a topic for this blog and information that is important for anyone who has ever or will ever sign a contract.
Very few people read the agreements they are signing from start to finish, and in neglecting to do so they do not know what the terms of the agreement are when it comes to dispute resolution. Most people assume that if the contract is breached, there will be a lawsuit; this is generally the case, however more and more parties are including arbitration clauses in the deals. What this means is that instead of taking a dispute to court and letting a judge and/or jury decide who is at fault and who is not, it goes to a private service and they assign it to an arbitrator – usually a retired judge or attorney – who acts as the decision maker.
The pros of working with an arbitration service is that the matter is private (court proceedings are public record) and it’s supposed to be on a faster schedule. This may or may not be true as it can take the same amount of time to arbitrate as it would to litigate.
The cons are primarily the cost. The parties must pay for the administrative services as well as the fees to the arbitrator who is the decision maker. This can amount in to the tens of thousands of dollars and if one party can’t pay, the others have to pony up that share. Additionally, unless it is decided prior to the arbitration in the agreement, the parties may not have any true procedural rules as you do in court. Further, the arbitration fees and costs do not include your attorney’s fees which will also start to add up.
Now, if you, like in Charlie’s case, decide to file a lawsuit in court when you have an arbitration clause, the opposing party will likely file a Motion to Compel Arbitration – or basically a request to send the case to arbitration per the agreement. So, if you don’t think you want to pay a lot of money to a private company for something that you can submit to the court and not have to pay all the extra fees, you would do well to contact a lawyer at the outset to review your contract before you sign it. Forewarned is forearmed.
Are You Giving Away Your Intellectual Propery Rights on Twitter?
The Twitter phenomenon has permeated our world-wide society. It is where many of us get our news, keep up with far-flung friends, and even make new friends, sight unseen. We share our goals, accomplishments, day to day happenings and many times we do so with pictures.
But do any of us know what happens to our pictures once they’re posted via the various twitter picture/album services like twitpic, yfrog, or plixi? Apparently plixi’s terms and conditions allow them to sell and make money off of pictures posted through it’s service. Who knew, right? Well, it took a celebrity tweet to bring it to our attention (See @katewalsh: SO BAD…ILLEGAL? RT @lalatas: @katewalsh @ipicarazzi Here is the link about Plixi images on selling twitter pics to agencies. UNCOOL! http://j.mp/gAYDfT”). Short answer Ms. Walsh – not illegal because by using the service you’ve agreed to license those pictures to them FOR FREE.
A quick overview of the terms & conditions shows that indeed, users are granting a worldwide, royalty free license to use, duplicate, and sub-license (ie: sell) the pictures posted using their service to other people and/or companies. What does this mean? Well for you and me (ie: non-celebrities) it means that the picture of your dog or kid can be sold to a company for use in an ad, packaging, or anything else. Not that big a deal, right? If you are a celebrity, it means that the picture you posted of yourself and friends at a local restaurant can now be sold – without your knowledge – to that restaurant for use as an advertisement that you endorse that establishment.
Why should non-celebs care? It’s the principle of the matter. Knowing that most users do not read the terms & conditions, plixi has essentially taken your property from you – in essence they’ve stolen from your all the while rationalizing by saying, “It’s in the T&C’s if people don’t want their pictures sold, they should use a different service.” The problem is that it now avoids the purpose and protection that each person that snaps a picture has under the Copyright Act. That picture is YOURS… yours to sell, yours to post, to duplicate, sell, or give away. But you should have a choice as to what happens to those pictures.
So what to do now? It all depends on whether you feel strongly about this or not. As for me, I transferred my pictures to a service that doesn’t sell them and deleted my account with plixi. If you want to read the terms & conditions, there is a link below to the plixi site.
http://plixi.zendesk.com/entries/343628-terms-of-service
Beitchman & Zekian
Michelle
tchvat
