08.25.09
Posted in Bankruptcy/Creditor Rights at 6:51 pm by Eric
So, you’ve repossessed your dead-beat debtor’s car and getting ready to follow the Uniform Commercial Code requirements with respect to the proper disposition of collateral. And then you get hit with notice that the debtor has filed bankruptcy.
Do you have to give it back? In all likelihood, yes. The Bankruptcy Courts have held that, until a debtor is completely divested of all ownership in the car, the car is still part of the debtor’s bankruptcy estate and therefore subject to the automatic stay. Under Michigan’s UCC, ownership continues until the bank has exercised its post-default remedies to the point that the debtor no longer has the right to redeem. In re Gordon, 2006 U.S. Dist. LEXIS 421 and In re Sanders, 291 B.R. 92 (2008).
It’s worth noting, however, that more and more courts are ruling that a creditor does not have an affirmative duty to return the seized property, unless the debtor first provides the creditor with adequate protection. See In re Brown, 237 BR 316 (1999). If the collateral is valuable, a creditor should probably explore the issue a bit more before it abjectly surrenders its collateral.
Permalink
08.24.09
Posted in Corporate Law at 11:42 am by Eric
If your trade name is going to be crucial to your business–and perhaps even if it’s not going to be crucial–you may want to do a trademark search to see whether there are any other businesses already using the name. You can hire a company online to do the search (type “Trademark search” in Yahoo, and you’ll get plenty of options–needless to say, we don’t vouch for any of them) or you can hire an intellectual property attorney to help you.
Most new businesses, though, aren’t investing a lot of money into name recognition, so it normally isn’t cost-effective to pay for a trademark search. I typically suggest they run random searches in online search engines and see what pops up (the “poor man’s trademark search”). If they’re feeling motivated, I tell them to try the USPTO website as well. It offers free federal trademark searches.
Permalink
08.20.09
Posted in Employment Law at 4:53 pm by Eric
What minimum wages do the different states require? Go here for a nifty interactive map from the U.S. Department of Labor.
Permalink
08.19.09
Posted in Employment Law at 12:04 pm by Eric
Your employee lost his uniform and you want to withhold his wages to pay for it? Be very careful. Michigan and Indiana both make it hard. In Michigan, you need to obtain a separate written authorization from the employee for each paycheck, unless the withholding is for the benefit of the employee (e.g., the employee does an automatic deduction for direct deposit into his savings account). In Indiana, you can get a blanket authorization for future wages, but the written authorization must contain certain terms and it’s only effective for a baker’s dozen of reasons (charitable pledges, labor dues, sale of merchandise to the employee, etc.).
Permalink
08.18.09
Posted in Uncategorized at 8:09 pm by Eric
You ever wonder why the Power of Attorney drafted by your lawyer is so cotton-pickin’ long? After all, a two-line document would meet the rubrics of the statutory requirements. Is it because lawyers get paid more if the document is longer? Nope. It’s because, if your lawyer leaves out any possible economic transaction, it could come back to bite the client (and, worse (smile), the lawyer). Exhibit A: In Barnett v. United States, No. 07-cv-844, 2009 WL 2426246 (W.D. Pa. May 27, 2009), the court determined that gifts made on behalf of the principal by his agent did not qualify for the annual exclusion because the power of attorney did not authorize the gifts. Accordingly, because the principal died, these gifts were brought back into the estate.
Permalink
08.10.09
Posted in Employment Law at 7:49 pm by Eric
Your employer gives you a smart phone. You carry it with you, making yourself accessible 24/7. You respond to a couple of emails and texts. It all seems simple enough.
But how much time should your employer pay you? Did the smart phone put you over 40 hours for the week? Those are the issues beginning to unravel in the courts.
Excerpt:
Last month, three current and former employees sued T-Mobile USA Inc., claiming they were required to use company-issued smart phones to respond to work messages after hours without pay. In a March suit, a former CB Richard Ellis Group Inc. maintenance worker seeks pay for time spent after hours receiving and responding to messages on a work-issued cellphone.
The federal Fair Labor Standards Act says employees must be paid for work performed off the clock, even if the work was voluntary. When the law was passed in 1938, “work” was easy to define for hourly employees. As the workplace changed, so did the rules for when workers should be paid.
In the T-Mobile case, current and former employees say they were required to use company-issued smart phones to respond to work-related messages, including customer complaints, after hours without pay. When the workers reported the hours to management of the cellphone company, the lawsuit says, the employees were told nothing could be done and they should expect to work extra hours as part of T-Mobile’s “standard business practices.”
Permalink
08.04.09
Posted in Uncategorized at 8:14 pm by Eric
Received in a Michigan lawyer listserve email from a respected attorney out of Detroit:
[T]he DEQ is pushing forward with a new legislative initiative to do away with the BEA, possibly to require every property owner in the state to investigate their own property and report on same to the DEQ and to ramp up so called “due care” possibly to require remedial work at levels (and costs) that previously were unheard of. They are also talking about modifying their closure process but, there too, there is concern that there may be less finality and certainty than there is now.
I know many business owners, lenders and developers are looking at this initiative which MDEQ has been releasing in bits and pieces for some months with great consternation and concern about the chilling effect it would have on business in Michigan at a time when the State can ill afford it.
I would be happy to speak to anyone interested in getting information about this legislative initiative (which is far more than merely rewriting policies). The one bit of good news is that there is still an opportunity to turn this Titanic before it hits the iceberg.
Permalink
08.03.09
Posted in Uncategorized at 9:15 pm by Eric
Been seeing lots of removed material on YouTube? This might be why: The Digital Millennium Copyright Act (DMCA) imposes penalties for infringement of copyrighted works as well as safe harbor provisions for online service providers and other intermediaries. To be protected by the safe harbor, the service provider must block access or remove material for which a copyright holder claims infringement. The copyright holder sends a “takedown notice” to the service provider at the email address published by the provider for that purpose. The service provider must, for the safe harbor to apply, remove the material and notify the user who posted the material that the material was removed pursuant to such a request.
Permalink
