A huge number of people in Florida are boaters. Even more of us pretend to be boaters for the Columbus Day Regatta. For those of you unfamiliar with the ritual, picture a flotilla of boats, yachts, mega-yachts, rafts and buyouant garbage the size of the entire US Navy but without any of the order, discipline, cleanliness or ability to protect itself or others from danger. It's fair to say, beer sales are that weekend of the year.
And unless you've been living on the moon, you are aware that Florida prohibits drunk driving. Everyone knows someone who knows someone who has been charged, convicted or gotten out of a DUI situation. There's a whole body of law governing drunk driving. There is also, as it turns out, express law against drunken boating and a requirement that you submit yourself to sobriety testing. Observe:
The Legislature declares that the operation of a vessel is a privilege that must be exercised in a reasonable manner. In order to protect the public health and safety, it is essential that a lawful and effective means of reducing the incidence of boating while impaired or intoxicated be established. Therefore, any person who accepts the privilege extended by the laws of this state of operating a vessel within this state is, by so operating such vessel, deemed to have given his or her consent to submit to an approved chemical test or physical test including, but not limited to, an infrared light test of his or her breath for the purpose of determining the alcoholic content of his or her blood or breath if the person is lawfully arrested for any offense allegedly committed while the person was operating a vessel while under the influence of alcoholic beverages. The chemical or physical breath test must be incidental to a lawful arrest and administered at the request of a law enforcement officer who has reasonable cause to believe such person was operating the vessel within this state while under the influence of alcoholic beverages. The administration of a breath test does not preclude the administration of another type of test. The person shall be told that his or her failure to submit to any lawful test of his or her breath will result in a civil penalty of $500, and shall also be told that if he or she refuses to submit to a lawful test of his or her breath and he or she has been previously fined for refusal to submit to any lawful test of his or her breath, urine, or blood, he or she commits a misdemeanor in addition to any other penalties. The refusal to submit to a chemical or physical breath test upon the request of a law enforcement officer as provided in this section is admissible into evidence in any criminal proceeding.
The statute goes on to say that you are also required to give a urine test, if requested. Awesome.
So, boaters beware. The law is out there - and it's slightly different than drunk driving.
Tuesday, April 28, 2009
Thursday, April 23, 2009
A Problem Or Justice - You Decide
It's Thursday, which means it's opinion poll time. Well, not normally, but it is today. I want to hear your thoughts on the following scenario.
The law requires that court proceedings be conducted in English. Now, being that this is Miami, not everyone speaks English. In fact, some folks are newly arrived from other places, some are in the process of learning and, let's face it, some just don't want to learn. Now, imagine appearing in court at a hearing, which is a public forum, and witnessing a court proceeding conducted in Spanish. This is not a made up scenario, this actually happened - and it happened today, right here in Miami, Florida.
Apparently, the case ahead of my reporting source was a property foreclosure suit in which the homeowner defendants did not or pretended not to speak English. There were some technical issues to be sorted out and, instead of going to the trouble of using interpreters or going through the attorneys, the judge decided to simply ask questions of the defendants in Spanish. The Judge then carried some part of the remaining discussion with counsel for the parties in Spanish, as well.
What do you think of this? Is this a situation of immigration rights gone too far? After all, the law is the law and it requires that proceedings be conducted in English. Or are we facing a situation of a Court sympathetic to unfortunate people who were losing their home and decided not to foist additional costs on to them by skipping over the hiring of a translator and speaking to them directly in their native language?
Ok, jury of my peers, the floor is open for discussion! If you want, you can post your replies directly on the blog page where this entry will also appear - www.kaijacobs.blogspot.com.
The law requires that court proceedings be conducted in English. Now, being that this is Miami, not everyone speaks English. In fact, some folks are newly arrived from other places, some are in the process of learning and, let's face it, some just don't want to learn. Now, imagine appearing in court at a hearing, which is a public forum, and witnessing a court proceeding conducted in Spanish. This is not a made up scenario, this actually happened - and it happened today, right here in Miami, Florida.
Apparently, the case ahead of my reporting source was a property foreclosure suit in which the homeowner defendants did not or pretended not to speak English. There were some technical issues to be sorted out and, instead of going to the trouble of using interpreters or going through the attorneys, the judge decided to simply ask questions of the defendants in Spanish. The Judge then carried some part of the remaining discussion with counsel for the parties in Spanish, as well.
What do you think of this? Is this a situation of immigration rights gone too far? After all, the law is the law and it requires that proceedings be conducted in English. Or are we facing a situation of a Court sympathetic to unfortunate people who were losing their home and decided not to foist additional costs on to them by skipping over the hiring of a translator and speaking to them directly in their native language?
Ok, jury of my peers, the floor is open for discussion! If you want, you can post your replies directly on the blog page where this entry will also appear - www.kaijacobs.blogspot.com.
Wednesday, April 22, 2009
Something Different For Earth Day
Happy Earth Day! Every year, I hear about Earth Day and see CNN footage of environmentally-minded (or who pretend to be for one day, anyway) twenty-somethings in San Francisco, Boulder and towns in Vermont gathered in celebration. By celebration, I mean donning one's best Birkenstocks, congregating at a local park and listening to some speeches and musical performances by environmentally conscientious musicians. I'm always left a little perplexed. What exactly is Earth Day attempting to achieve? The media outlets must be getting only part of the picture, right? It has to be more than kids in tie-dye hanging out on the lawn for a rite of spring.
So, here's the quick history on Earth Day I was able to rustle up. In 1970, Wisconsin senator Gaylord Nelson attended a conference at which he announced that April 22, 1970 would be a day of national demonstration in support of the environment. At the time, a big social issue was overpopulation and its impact on the destruction of our environment and resources. For those of you who recall, a few years later we would worry about saving electricity and gas. Anyway, I digress.
Of course, in 1970 students and twenty-somethings were still up for things like protests and public demonstrations. They responded to Senator Nelson's entreaty and celebrated the first Earth Day all over college campuses to the tune of about 20 million participants.
Earth Day, then, is treated as the start of the "Environmental Movement" in America. In conjunction with this, then President Nixon signed the National Environmental Policy Act into law on January 1, 1970 (shortly after Senator Nelson's announcement). It's an interesting law. It set up procedures for the federal agencies to study and report on the environmental impact of their own work and proposed federal action. Among other things, proposed federal action requires the preparation of extensive reports, called Environmental Impact Statements and Environmental Assessments.
So Happy Earth Day, everyone. Whether you believe in global warming or not, whether you believe in Alaska drilling or not, whether you believe in the use of pesticides on food crops or not, I think everyone agrees that our environment is what literally sustains us - more so than the law - and we all share in some obligation to protect it.
Tuesday, April 21, 2009
I Do Declare
For those of you with a litigation track record, you know how long and drawn out the process can be. The courts are back-logged and recently suffered significant budget cuts, lawyers carry large caseloads to meet their billable hour requirements and can't get everything done when you want or need it and your opponent is trying to slow things down simply as a strategy to wear you down.
In many instances, the law does not acknowledge these impediments now considered built-in aspects of the system. In one instance, however, it does - the declaratory judgment action.
Unlike your ordinary lawsuit for damages, the declaratory judgment action asks the courts to declare what the parties' respective rights or obligations are under a particular contract or statute where there is a doubt. As a matter of law, these actions are supposed to move faster through the system than other suits and, if you don't tie them to damages claims, should be resolved more economically. In fact, declaratory judgment suits are supposed to be resolved on an expedited basis.
The perfect scenario for the declaratory judgment suit is your good old insurance policy. You say you have coverage for a particular situation, your insurance company says you do not. You sue simply for a declaration from the court as to whether coverage does or does not exist. Pretty simple. Of course, you can use the declaratory judgment action to resolve any instance where the parties are in doubt as to their particular rights or obligations under any contract or statute. You will see this kind of suit often involving tax issues and real estate contracts.
So, don't despair. Just because you find yourself in a dispute does not mean that you are always in for the long-haul civil litigation route.
In many instances, the law does not acknowledge these impediments now considered built-in aspects of the system. In one instance, however, it does - the declaratory judgment action.
Unlike your ordinary lawsuit for damages, the declaratory judgment action asks the courts to declare what the parties' respective rights or obligations are under a particular contract or statute where there is a doubt. As a matter of law, these actions are supposed to move faster through the system than other suits and, if you don't tie them to damages claims, should be resolved more economically. In fact, declaratory judgment suits are supposed to be resolved on an expedited basis.
The perfect scenario for the declaratory judgment suit is your good old insurance policy. You say you have coverage for a particular situation, your insurance company says you do not. You sue simply for a declaration from the court as to whether coverage does or does not exist. Pretty simple. Of course, you can use the declaratory judgment action to resolve any instance where the parties are in doubt as to their particular rights or obligations under any contract or statute. You will see this kind of suit often involving tax issues and real estate contracts.
So, don't despair. Just because you find yourself in a dispute does not mean that you are always in for the long-haul civil litigation route.
Monday, April 20, 2009
Injunction Junction
Well, it's Monday again. Hopefully, everyone has recovered from the pain and shock of learning just how much of the economic stimulus package they had to pay for last week.
Today, I have another chapter in the story of equity to relay to you. You may remember that, last week, I explained that we have a divide in the legal system between law and equity with equity based on the concept of fairness more than anything else.
Last time, I discussed some substantive equitable rights you had to payment if you were a lawn service provider. Today, I have procedural device used in equity - the injunction. Typically, people think of the injunction as the criminal restraining order used to keep that guy in your apartment complex at least 500 away at all times because he used to send you love letters enclosing voodoo dolls made from dust bunnies and which were tokens of his undying love.
The injunction, however, is more than that. Specifically, I am talking about the injunction used in the civil context - the only one I hope you will ever need. The injunction is a tool designed to prevent or compel someone from undertaking a certain act. Unlike a legal claim for which you can only receive money, the equitable devices allow for other forms of relief. The catch (because you knew there was one, right?)? To receive the benefit of something like an injunction, you have to be able to prove that there is no legal claim that affords you relief. In other words, you have a situation that money will not or cannot fix.
Example time, courtesy of an old client. Phone, Inc., a very small phone company, leases a telecommunications switch (a device that helps connect phone calls between two or more places) for inbound and outbound calls from South America from Switch, Inc. Switch sends a monthly invoice for the lease to Phone, but Phone thinks it has been overbilled by $300,000. Switch tells Phone, pay by Monday or be disconnected. Phone is now in a predicament. If it does not pay, it will lose the ability to send and receive calls, all of its customers will be unable to use the company's services, and in addition to losing the $300,000 in overbilled switch time, there will be lost revenue from customers (that cannot be measured) who cannot place calls and who quit the service altogether and the company will be out of business by the end of the week.
The only hope - an injunction to prevent Switch from terminating switch service until the billing dispute can be worked out. Fortunately, the Court granted Phone's injunction and the parties were ultimately able to work out the billing problem. To get the injunction, Phone had to be able to show the Court: 1) there was no remedy in the law to fix the problem (money was not going to help all the people who could not make calls); 2) Phone was likely to win its billing dispute with Switch; 3) Phone would suffer irreparable harm if the injunction was not granted (it would be out of business); and 4) obtaining the injunctive relief was not something contrary to public policy (which is a touchy-feely element designed to make sure we are not protecting interests that are out of line with what the greater society thinks is appropriate).
You should know that obtaining an injunction to prevent an action is easier than obtaining one to compel an action. It's just a common sense idea, really. Telling someone to take no action is easier than forcing them to do something.
The injunction is one of those equitable devices used to save the day when the ordinary lawsuit just won't cut it. It is a tool sparingly used by the Courts, but one that literally makes the difference between life and death for some of my corporate clients.
Have a great week, everyone.
Today, I have another chapter in the story of equity to relay to you. You may remember that, last week, I explained that we have a divide in the legal system between law and equity with equity based on the concept of fairness more than anything else.
Last time, I discussed some substantive equitable rights you had to payment if you were a lawn service provider. Today, I have procedural device used in equity - the injunction. Typically, people think of the injunction as the criminal restraining order used to keep that guy in your apartment complex at least 500 away at all times because he used to send you love letters enclosing voodoo dolls made from dust bunnies and which were tokens of his undying love.
The injunction, however, is more than that. Specifically, I am talking about the injunction used in the civil context - the only one I hope you will ever need. The injunction is a tool designed to prevent or compel someone from undertaking a certain act. Unlike a legal claim for which you can only receive money, the equitable devices allow for other forms of relief. The catch (because you knew there was one, right?)? To receive the benefit of something like an injunction, you have to be able to prove that there is no legal claim that affords you relief. In other words, you have a situation that money will not or cannot fix.
Example time, courtesy of an old client. Phone, Inc., a very small phone company, leases a telecommunications switch (a device that helps connect phone calls between two or more places) for inbound and outbound calls from South America from Switch, Inc. Switch sends a monthly invoice for the lease to Phone, but Phone thinks it has been overbilled by $300,000. Switch tells Phone, pay by Monday or be disconnected. Phone is now in a predicament. If it does not pay, it will lose the ability to send and receive calls, all of its customers will be unable to use the company's services, and in addition to losing the $300,000 in overbilled switch time, there will be lost revenue from customers (that cannot be measured) who cannot place calls and who quit the service altogether and the company will be out of business by the end of the week.
The only hope - an injunction to prevent Switch from terminating switch service until the billing dispute can be worked out. Fortunately, the Court granted Phone's injunction and the parties were ultimately able to work out the billing problem. To get the injunction, Phone had to be able to show the Court: 1) there was no remedy in the law to fix the problem (money was not going to help all the people who could not make calls); 2) Phone was likely to win its billing dispute with Switch; 3) Phone would suffer irreparable harm if the injunction was not granted (it would be out of business); and 4) obtaining the injunctive relief was not something contrary to public policy (which is a touchy-feely element designed to make sure we are not protecting interests that are out of line with what the greater society thinks is appropriate).
You should know that obtaining an injunction to prevent an action is easier than obtaining one to compel an action. It's just a common sense idea, really. Telling someone to take no action is easier than forcing them to do something.
The injunction is one of those equitable devices used to save the day when the ordinary lawsuit just won't cut it. It is a tool sparingly used by the Courts, but one that literally makes the difference between life and death for some of my corporate clients.
Have a great week, everyone.
Monday, April 13, 2009
It's Not Always Legal
The law is multi-faceted and covers a seemingly limitless range and number of subjects. Nearly every aspect of our personal and professional lives is in some respect touched or governed by the law. Federal statutes, state statutes, federal regulations, state regulations, county, city and village ordinances, court-made decisional law and administrative decisions - just some of the more common sources of law that touch our daily lives.
Believe it or not, though, the law doesn't cover everything. It's true. There are situations in which the law simply does not have a ready answer, solution or remedy. I know this sounds crazy, since we live in a country that people regularly complain is overrun with members of the bar, but sometimes we're talking about something more basic than law - we're talking about fairness.
Many, many years ago, our court system was divided into two parts - law and equity. Equity just means fairness and our system had an entire court devoted to hearing these cases. If the law didn't have an appropriate solution for your particular problem, you could pursue your claim in the equity court. I'm oversimplifying a little but you get the idea.
At some point, the law and equity courts were merged. Today, we allow persons to pursue their equity and law claims in the same place.
All right, so what am I talking about? How can it possibly be that there would be a lawsuit involving claims or something other than the law? Well, there is a claim known as unjust enrichment and it's used to pay people when they confer a benefit on someone but there is no contract governing the parties' relationship. For instance, suppose you have a lawn service and you think you have a contract with the Smiths to mow their yard every week. In fact, you even have a little piece of paper that you wrote and signed that seems like a contract. All is going well until one week when you don't get paid. Eventually, you have to sue to collect your money (I know, no one would sue to recover $50, but stay with me) and in court the Smiths' defense is that there is no signed contract - only you signed the contract. Well, in a court of pure law, there would be no contract and therefore no breach and you would be out of luck. But, the equity principal of unjust enrichment provides that, where there is no contract, you confer a benefit on someone else and they know and accept it, you get to recover the value of the benefit you conferred. Why? Because it's fair - that's equity.
Believe it or not, though, the law doesn't cover everything. It's true. There are situations in which the law simply does not have a ready answer, solution or remedy. I know this sounds crazy, since we live in a country that people regularly complain is overrun with members of the bar, but sometimes we're talking about something more basic than law - we're talking about fairness.
Many, many years ago, our court system was divided into two parts - law and equity. Equity just means fairness and our system had an entire court devoted to hearing these cases. If the law didn't have an appropriate solution for your particular problem, you could pursue your claim in the equity court. I'm oversimplifying a little but you get the idea.
At some point, the law and equity courts were merged. Today, we allow persons to pursue their equity and law claims in the same place.
All right, so what am I talking about? How can it possibly be that there would be a lawsuit involving claims or something other than the law? Well, there is a claim known as unjust enrichment and it's used to pay people when they confer a benefit on someone but there is no contract governing the parties' relationship. For instance, suppose you have a lawn service and you think you have a contract with the Smiths to mow their yard every week. In fact, you even have a little piece of paper that you wrote and signed that seems like a contract. All is going well until one week when you don't get paid. Eventually, you have to sue to collect your money (I know, no one would sue to recover $50, but stay with me) and in court the Smiths' defense is that there is no signed contract - only you signed the contract. Well, in a court of pure law, there would be no contract and therefore no breach and you would be out of luck. But, the equity principal of unjust enrichment provides that, where there is no contract, you confer a benefit on someone else and they know and accept it, you get to recover the value of the benefit you conferred. Why? Because it's fair - that's equity.
Wednesday, April 8, 2009
There Is No Competition
The world is in economic free-fall these days. Markets go up and down, seemingly governed only by the irrational fears and hopes of those who invest in it. Companies, public and private, are laying off workers, in part, because of actual financial loss and inability to pay and, in part, because they fear that they will not be able to pay in the future. In short, it's madness out there.
Not surprisingly, I have been overwhelmed lately by clients who want to consider moving on to greener pastures or just to change scenery. Some consult me because they want to, others because they have to. In any event, I've been spending a lot of time lately looking at employment agreements hastily executed in better times and in consideration for the promise of a good paycheck and fat benefits that have that now evaporated or are in real danger of being drastically curtailed. As a result, a lot of people want out of their current situation. Who can blame them?
Many of the agreements I have reviewed lately contain provisions known as "covenants not to compete" and "non-solicitation covenants." I have briefly touched on these subjects before, but in the last few weeks I have been confronted with these provisions so many times, I thought it was worth mentioning again. In Florida, we have a general policy against laws or rules that restrict or prohibit competition. We are a free market, after all. That said, there are valid commercial reasons why certain employers are allowed to restrict employee competition. Typically, it involves customers or trade secrets.
I'll explain what I mean. Say, you are a chemist for ABC Chemicals. You have an employment agreement that contains a covenant not to compete with ABC Chemicals if you leave the company. Why? Because, as an ABC employee, you will get to see all the copyrighted, patented and trademarked formulas and information. Those things have special, distinct and unique commercial value in the marketplace and would be most useful to a competitor of ABC. So, the theory goes, by having a non-competition and non-solicitation provision in your employment agreement, a competitor will not be tempted to poach you and bring you in so it can use you to divulge all of ABC's secrets. In that regard, such provisions are meant to foster competition by ensuring that companies have protection over their trade secrets.
You should know that non-competition and non-solicitation provisions are enforceable to a point. You cannot be prohibited from competing forever or globally. The law requires that the restriction be reasonable in time and in geographic scope. You should also know that, if you go to work for a competitor, your employer can sue to prevent you from continuing to work.
So, please, before leaving your current job, check your employment agreement (if you have one) and confirm what the scope of your rights and restrictions are.
Not surprisingly, I have been overwhelmed lately by clients who want to consider moving on to greener pastures or just to change scenery. Some consult me because they want to, others because they have to. In any event, I've been spending a lot of time lately looking at employment agreements hastily executed in better times and in consideration for the promise of a good paycheck and fat benefits that have that now evaporated or are in real danger of being drastically curtailed. As a result, a lot of people want out of their current situation. Who can blame them?
Many of the agreements I have reviewed lately contain provisions known as "covenants not to compete" and "non-solicitation covenants." I have briefly touched on these subjects before, but in the last few weeks I have been confronted with these provisions so many times, I thought it was worth mentioning again. In Florida, we have a general policy against laws or rules that restrict or prohibit competition. We are a free market, after all. That said, there are valid commercial reasons why certain employers are allowed to restrict employee competition. Typically, it involves customers or trade secrets.
I'll explain what I mean. Say, you are a chemist for ABC Chemicals. You have an employment agreement that contains a covenant not to compete with ABC Chemicals if you leave the company. Why? Because, as an ABC employee, you will get to see all the copyrighted, patented and trademarked formulas and information. Those things have special, distinct and unique commercial value in the marketplace and would be most useful to a competitor of ABC. So, the theory goes, by having a non-competition and non-solicitation provision in your employment agreement, a competitor will not be tempted to poach you and bring you in so it can use you to divulge all of ABC's secrets. In that regard, such provisions are meant to foster competition by ensuring that companies have protection over their trade secrets.
You should know that non-competition and non-solicitation provisions are enforceable to a point. You cannot be prohibited from competing forever or globally. The law requires that the restriction be reasonable in time and in geographic scope. You should also know that, if you go to work for a competitor, your employer can sue to prevent you from continuing to work.
So, please, before leaving your current job, check your employment agreement (if you have one) and confirm what the scope of your rights and restrictions are.
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