Florida Statute Sec. 69.081 - Sunshine in litigation; concealment of public hazards prohibited.
(1) This section may be cited as the “Sunshine in Litigation Act.”
(2) As used in this section, “public hazard” means an instrumentality, including but not limited to any device, instrument, person, procedure, product, or a condition of a device, instrument, person, procedure or product, that has caused and is likely to cause injury.
(3) Except pursuant to this section, no court shall enter an order or judgment which has the purpose or effect of concealing a public hazard or any information concerning a public hazard, nor shall the court enter an order or judgment which has the purpose or effect of concealing any information which may be useful to members of the public in protecting themselves from injury which may result from the public hazard.
(4) Any portion of an agreement or contract which has the purpose or effect of concealing a public hazard, any information concerning a public hazard, or any information which may be useful to members of the public in protecting themselves from injury which may result from the public hazard, is void, contrary to public policy, and may not be enforced.
(5) Trade secrets as defined in s. 688.002 which are not pertinent to public hazards shall be protected pursuant to chapter 688.
(6) Any substantially affected person, including but not limited to representatives of news media, has standing to contest an order, judgment, agreement, or contract that violates this section. A person may contest an order, judgment, agreement, or contract that violates this section by motion in the court that entered the order or judgment, or by bringing a declaratory judgment action pursuant to chapter 86.
(7) Upon motion and good cause shown by a party attempting to prevent disclosure of information or materials which have not previously been disclosed, including but not limited to alleged trade secrets, the court shall examine the disputed information or materials in camera. If the court finds that the information or materials or portions thereof consist of information concerning a public hazard or information which may be useful to members of the public in protecting themselves from injury which may result from a public hazard, the court shall allow disclosure of the information or materials. If allowing disclosure, the court shall allow disclosure of only that portion of the information or materials necessary or useful to the public regarding the public hazard.
(8)(a) Any portion of an agreement or contract which has the purpose or effect of concealing information relating to the settlement or resolution of any claim or action against the state, its agencies, or subdivisions or against any municipality or constitutionally created body or commission is void, contrary to public policy, and may not be enforced. Any person has standing to contest an order, judgment, agreement, or contract that violates this section. A person may contest an order, judgment, agreement, or contract that violates this subsection by motion in the court that entered such order or judgment, or by bringing a declaratory judgment action pursuant to chapter 86.
(b) Any person having custody of any document, record, contract, or agreement relating to any settlement as set forth in this section shall maintain said public records in compliance with chapter 119.
(c) Failure of any custodian to disclose and provide any document, record, contract, or agreement as set forth in this section shall be subject to the sanctions as set forth in chapter 119.
This subsection does not apply to trade secrets protected pursuant to chapter 688, proprietary confidential business information, or other information that is confidential under state or federal law.
(9) A governmental entity, except a municipality or county, that settles a claim in tort which requires the expenditure of public funds in excess of $5,000, shall provide notice, in accordance with the provisions of chapter 50, of such settlement, in the county in which the claim arose, within 60 days of entering into such settlement; provided that no notice
Owners of federally registered trademarks own the exclusive right to use their mark for the classes of goods and services in the United States. So, let's say you own a federally registered trademark for the Class 25, which is for clothing, footwear or headgear, and someone approaches you with an offer to license your trademark to them.
First, a bit of terminology. The owner of a trademark who grants to another party the right to use its mark is called a "licensor". The party who is granted the right to use the trademark is called a "licensee." I try to avoid hard to understand legal words when possible, so I don't like to use the word "licensee", i prefer "License Holder", or I will just use the party's name.
When drafting a contract for a trademark own to grant to a prospective, License Holder, here are a few contractual considerations to work through.
Will the trademark owner give the License Holder exclusive or non-exclusive right to use the trademark. Exclusive mean only the License Holder can use the trademark, not even the trademark owner. Non-exclusive means the License Holder and others can use the mark. Generally speaking, a prospective License Holder should pay more for the exclusive right to use the mark compared to the non-exclusive right to use the mark.
Geographical limitations are also a potential consideration. The trademark owner may want to license the right to use the mark in the Pacific Northwest; and again, we still have the exclusive and exclusive issue to work through in this agreement.
Trade channels are another consideration. The license grant could be limited to online sales, for instance, or to certain retail stores.
The actual goods that the License Holder can use the trademark on is a potential consideration. For example, our Class 25 trademark owner could grant the License Holder to use the trademark only on headgear, and not other clothing or footwear.
Royalties are also an important consideration. Royalties are "mailbox money" that can flow from a passive income stream that a trademark license could bring base on a percent of the License Holders's sales of goods that display the trademark owner's trademark. Of course, trust but verify; the trademark owner will want to have the right to audit the License Holder's sales to verify the accuracy of the royalty--mailbox money--payments.
While this list is not exhaustive, I would be remiss if I did not mention that the trademark owner will also need to have detailed rules about how the License Holder can use the trademark to make sure the use of the mark is proper and to avoid losing the mark for failing to police its use.
These are just some of the considerations to work through. Most people will need an experienced intellectual property attorney for a contract such as this, so consult your friendly IP attorney if this opportunity comes your way.
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9-13.420 - Searches of Premises of Subject Attorneys
NOTE: For purposes of this policy only, "subject" includes an attorney who is a "suspect, subject or target," or an attorney who is related by blood or marriage to a suspect, or who is believed to be in possession of contraband or the fruits or instrumentalities of a crime. This policy also applies to searches of business organizations where such searches involve materials in the possession of individuals serving in the capacity of legal advisor to the organization. Search warrants for "documentary materials" held by an attorney who is a "disinterested third party" (that is, any attorney who is not a subject) are governed by 28 C.F.R. 59.4 and USAM 9-19.221 et seq. See also 42 U.S.C. Section 2000aa-11(a)(3).
There are occasions when effective law enforcement may require the issuance of a search warrant for the premises of an attorney who is a subject of an investigation, and who also is or may be engaged in the practice of law on behalf of clients. Because of the potential effects of this type of search on legitimate attorney-client relationships and because of the possibility that, during such a search, the government may encounter material protected by a legitimate claim of privilege, it is important that close control be exercised over this type of search. Therefore, the following guidelines should be followed with respect to such searches:
Why We Ask Non-Owner Spouses to Consent to Shareholder Agreements and LLC Member Operating Agreements
Washington is a community property state, which means the spouse of a business owner holds a 50% ownership interest in his or her spouse’s business as part of the married couple’s community estate. In cases of divorce, this means that the non-owner spouse could be awarded 50% of his or her spouse’s interest (stock) in the business as part of a property settlement. In the case of death, most of the time it means the non-owner spouse will obtain 100% of the deceased spouse ownership interest (stock) in the business.
Companies your size typically require the owners to actually work in the business for the company to function. The owners have full-time jobs in their business.
So this comes into play in divorce, disability or death situations.
As harsh as this may sound, most business owners do not want to be in business with a non-owner spouse of their partner. The non-owner spouse often knows very little about the business and cannot participate as a true owner. Plus, the non-owner spouse often has his or her own career that they prefer over being a business owner.
So, in a Shareholder Agreement, we often adds language that says:
In the case of divorce, the divorcing spouse will pay cash to his or her spouse in the property settlement (as opposed to the spouse being given actual stock in the corporation in the property settlement).
In the case of death, the remaining business owners will buyout the surviving spouse. Life insurance is often used to fund this.
In the case of permanent disability, the remaining owners will buy-out their disabled partner because they need to get someone in to fill the shoes of the disabled owner. Disability insurance can be used to fund this, but it’s expensive.
We ask the non-owner spouses to sign off that they understand and agree to all of this.
Contact Mark D. Walters
Some business owners opt for "S-Corporation" status for their corporation to help reduce the self-employed taxes they pay. There are are few rules that have to be met to do this. A corporation is S-corporation eligible if:
Some people, because of their circumstances, are more susceptible to injuries than others. The law protects these people via the eggshell plaintiff rule. The eggshell plaintiff rule holds that a tortfeasor takes his victim as he finds him. Buchalski v. Universal Marine Corp., 393 F. Supp. 246, 248 (W.D. Wash. 1975) (“It is a well-established precept of tort law that a tortfeasor takes his victim as he finds him, and must bear liability for the manner and degree in which his fault manifests itself on the individual physiology of the victim.” Id.) It is well established in Washington law. See, e.g., Reeder v. Sears, Roebuck & Co., 41 Wn.2d 550, 556-57, 250 P.2d 518 (1952).
A potential example of an eggshell plaintiff is a person who is a previous victim of violence or abuse. Many times such persons are more susceptible to emotional distress injury if they are subsequently the target of verbal or physical abuse at work. In such a case--a hostile work environment case--the severity of the plaintiff's emotional distress injuries may be greater than a person who was not a prior victim of violence or abuse. The eggshell plaintiff rule protects this person, and permits a recovery for the more severe emotional distress injuries.
Another potential example of an eggshell plaintiff could be a person who suffered a physical injury of some sort previously, and because of this prior injury to their body, they are at risk for greater harm than someone without this history. If such a person is in an automobile accident and suffers a greater injury because of the prior injury, the eggshell plaintiff rule protects them and affords a path to recover on the greater injury.
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In a copyright infringement claim, the fair use defense is often raised. Fair use is an affirmative defense that stems from the United States Copyright Act, which provides at 17 USC Sec. 107:
"[T]he fair use of a copyrighted work . . . for purposes such as criticism, comment, news reporting, teaching . . . , scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include‐‐
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work."
In copyright litigation, fair use is an affirmative defense, so the party raising it has the burden of proof and persuasion. Courts undertake a case‐by‐case analysis and consider each statutory factor weighing them together in light of the purposes of copyright, which is to protect authors. Courts are required to consider each factor, with the rule that some factors are more important than others, and the market impact factor being the single most important factor.
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The business judgment rule shields a corporate director or office from liability as long as he or she acts in goof faith without a corrupt motive. Unless there is evidence of fraud, dishonesty, or incompetence, courts will generally refuse to substitute its judgment for the judgment of the directors or officers of corporations. As long as there is a reasonable basis that indicates the challenged translation was entered into with due care and in good faith, the business judgment rule will almost always carry the day and protect the officers and directors. The business judgement rule also applies to members of a limited liability company.
Shareholders that want to challenge corporate action, have an uphill battle due to the business judgment rule.
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Washington's Consumer Protection Act - Seller's Failure to Disclose Material Adverse Facts Not Easily Discoverable by Buyers
Washington's Consumer Protection Act (CPA) makes it unlawful to engage in unfair or deceptive acts or practices in trade or commerce. The purpose of the CPA is to protect the public and foster honest competition.The CPA applies to activities both before and after a sale, and may be violated by failure to disclose material facts. Smith v. Sturm, Ruger & Co., Inc., 39 Wn.App. 740, 747-48, 695 P.2d 600, review denied, 103 Wn.2d 1041 (1985).
To prove that a business engaged in an unfair or deceptive act, a CPA plaintiff does not have to demonstrate that the act was intended to deceive, but only that the alleged act had the capacity to deceive a substantial portion of the purchasing public. Sing v. John L. Scott, Inc., 134 Wn.2d 24, 30, 948 P.2d 816 (1997). Washington's High Court has held that even a breach of a private contract can affect the public interest, and support a CPA lawsuit if additional plaintiffs “have been or will be injured in exactly the same fashion.” Hangman Ridge Training Stables, Inc. v. Safeco Title Ins. Co., 105 Wn.2d 778, 790, 719 P.2d 531 (1986).
Washington law establishes a legal duty on sellers to disclose facts material to a transaction when the facts are known to the seller but not easily discoverable by the buyer. For example, in Testo v. Russ Dunmire Oldsmobile, Inc., 16 Wn.App. 39, 51, 554 P.2d 349 (1976), a car dealer failed to disclose that a Camaro was modified for racing, which increased the costs of repairs and maintenance. The Testo court held that the dealer's act of withholding these facts material to the sale was a deceptive act under the CPA.
The seller's legal duty to disclose material facts also exists in real estate transactions. In McRae v. Bolstad, 101 Wn.2d 161, 162-65, 676 P.2d 496 (1984), homebuyers successfully prosecuted an action under the CPA when the home sellers failed to disclose sewer and drainage problems. In holding that the homebuyer's claim met the CPA's public interest element, the court determined that the seller's failure to disclose material facts about the property was an unfair and deceptive act or practice.
In addition to this general duty to disclose material facts, the Disclosure Addendum to a Purchase and Sale Agreement for real estate creates a contractual duty for the seller to disclosure material facts. Accordingly, both Washington case law and the standard Disclosure Addendum to a Purchase and Sale Agreement used in Washington for real estate transactions imposes high legal duty on the seller to disclosure material adverse facts not easily discoverable by the buyers.
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Early in my legal career, I worked on a case that went to the Court of Appeals in Washington. The case is captioned, Lloyd Enters., Inc. v. Longview Plumbing & Heating Co., 91 Wn. App. 697, 701, 958 P.2d 1035 (1998). In this case, we represented a contractor plaintiff and filed complaints against Berry, Inc. and Wade Berry, the president of Berry, Inc. Non-lawyer Wade Berry filed answers pro se on behalf of the corporation, meaning without a licensed attorney. Having a non-lawyer in the case was disruptive to the proceeding to say the least.
After sending multiple warnings to Berry Inc. and Wade Berry, we moved to strike all the documents filed by Mr. Berry acting for the benefit of the corporation. This because Rule 11 of the Washington Rules of Civil Procedure requires pleadings to be signed by a licensed attorney.
After granting the motion, the trial court gave the corporation, Berry, Inc., 20 days to file an answer signed by an licensed attorney. When Berry, Inc. failed to comply, the trial court entered an order of default.
On appeal, Division One of the Washington State Court of Appeals held that the trial court properly struck the documents for violation of Rule 11 because the corporation did not promptly cure the omission. The Appeals Court stated: "Because corporations are artificial entities that can act only through their agents, we agree with the general common-law rule, recognized by courts in other jurisdictions, including all federal courts, that corporations appearing in court proceedings must be represented by an attorney."
The Court of Appeals explained the reason for its decision: "A shareholder who owns all or practically all of a corporation's stock is not entitled to sue as an individual because the shareholder cannot employ the corporate form to his advantage in the business world and then choose to ignore its separate entity when he gets to the courthouse."
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