Happy Friday, everyone. It's time for me to nag you a little. If you've read any of my previous postings, you are undoubtedly familiar with my requests, pleadings and beggings that all of you get your business documentation in order. It doesn't matter how small or how large your business, it's worth doing. I can only tell you that spending the time and money doing this now is exponentially smaller than the amount of money you will spend if you don't do it and something goes wrong.
Now, the conventional wisdom among friends and clients seems to be that nothing will go wrong or that your particular situation is such that it is not worth doing. Both precepts are just wrong. How do I know this? Because, once again, a client has come through the door thinking: a) they didn't need a lawyer; b) lawyers are just blood suckers out to get your money; and c) we can do this ourselves because there are a lot of great resources on the internet.
So, this is what happened. "Jim" went to buy a house. Jim did not use a lawyer because he thought it was too expensive. The seller of the house, "Linus," was selling the house because he was in default of his mortgage's repayment obligations. So, the bank that held the mortgage allowed Linus to sell the house on the condition that all of the sale proceeds go to the bank to pay the mortgage. Linus didn't like that and wanted some money for himself, so he told Jim that he would sell some of the furniture in the house for a price.
Jim and Linus then went back and forth on what to buy, what would the price be and even got their respective real estate agents involved (who, as in any game of telephone, didn't seem to be able to communicate the messages as accurately as Jim and Linus would have liked). Jim and Linus never did sit down and sign any kind of a contract for the furniture's purchase and sale.
Well, wouldn't you know it, there was trouble. Linus, who moved to Lithuania, started sending emails saying he wants the money for the "deal" he made with Jim. Jim replied saying there was no deal because Linus didn't move fast enough. The tone of the exchanges went downhill from there.
Now, I'm involved, as is Linus' attorney. Linus has threatened to sue Jim in Lithuania. Linus has almost no rights at all to stand on, but, because there is no proper documentation and has the threat of litigation half away around the world in his pocket, we're off to the races. Of course, we're not even discussing the problems with making the deal in the shadow of the bank's requirement to receive all of the sale proceeds.
Had Jim and Linus decided that it was worth hiring counsel to handle the real estate closing, there would be no problem now. Sure, they would each be out a few hundred dollars, but that's nothing to what they have now spent, will spend in the next few months and have lost in terms of time and aggravation.
So, once again, I plead with all of you. Take the time and incur the expense of shoring up your defenses and documentation now. It's so much cheaper and easier than fixing the problem because you never know when the problem is coming or what form it is going to take.
With that, I say, have a great weekend.
Friday, January 28, 2011
Monday, January 24, 2011
FDUTPA. That's right, I said it.
Greetings, all. It's been a while. Year end collection, administration and closing of the books consumed a lot of time and the holidays themselves kept me from reaching out to all of you for way too long. But, now that it's late January, there really are no more reasons or excuses. So, let's get down to it.
Florida's Deceptive And Unfair Trade Practices Act, known affectionately as FDUTPA. For many years, this statute was out in the penumbra of the known galaxy of legal claims. It really wasn't used all that often and it seemed sort of vague in what it was supposed to do. In a nutshell, it prohibited anyone from engaging in any unfair or deceptive trade practice. Wow, that's not very illuminating.
If you read a little deeper, you learned that the "anyone" really meant people and entities who were engaged in some form of business with consumers, making it a consumer protection statute. When you dug even deeper, you learned that FDUTPA was a sort of state enactment of the FTC regulations (called the Little FTC Act- how original). But, most people didn't really have a need to use a statute like FDUTPA because there were other laws out there designed specifically to cover many significant consumer transactions- buying a house, a car, a boat, a mobile home, livestock, etc. A generic, nondescript statute like FDUTPA seemed to be a well-intended law without a home.
A shame really, because the statute has some nice features for consumers who used it. But, why bother with a statute that has sub-parts and technical language and a seeming lack of explanatory case law when you can just sue for good old fraud and hit the other guy up for punitive damages?
Well, enter the financial crisis of 2008. A year that saw great change in the law and the legal profession. Not only did we gain a new president, the grounds for healthcare reform (which may or may not be here by this time next year), but the legal profession had to take a good hard look at the tools in our toolbox to figure out how we were going to handle the hundreds of thousands of foreclosures, the rampant mistakes (and sometimes fraud) by banks and mortgage servicers, the over-stated values of property by appraisers and the unbelievable confusion over who actually owned certain loans created by investment bankers?
We certainly couldn't wait for new laws to be written. We had to work with what was out there. In the hunt, someone dusted off FDUTPA and breathed new life into it. With a little help from the legislature, FDUTPA was recently amended to broaden its application. Not only does it protect consumers, but it now protects commercial parties (meaning all you business owners out there).
What does this mean for you? It means, there's a whole new universe out there - both of opportunity and pitfalls. As consumers and commercial parties alike, you have a new avenue to redress wrongs based in some sort of misconduct by your seller or contracting party. The vagueness of the statute now seems to be part of its beauty. I've seen it applied to real estate transactions, loans, distributorship agreements, auto lease arrangements and re-financing contracts.
What do I mean? If you are buying groceries, for instance, and you notice that the supermarket overcharged you randomly for some items, you would probably let it go. But suppose, when you back next week, you see that there are more overcharges. You go back a third time and there are still more. Now, you may have a "practice" that is intended to hurt you, the consumer. Assuming the supermarket wasn't just employing a cashier with really inaccurate fingers, such a practice could be a FDUTPA violation.
There are a lot of reasons (read: technical) lawyers like FDUTPA in the new economy- it's not as hard to prove as fraud, there is no need to prove an intent to deceive (like in fraud), the plaintiff can recover his/her/its attorneys' fees and the statute is not barred by the economic loss rule (which, if you really want to know about, you should e-mail me and then get your head examined).
So, FDUTPA has taken on new life in the last few years and I think it's going to be here to stay. So welcome.....and watch out!
Florida's Deceptive And Unfair Trade Practices Act, known affectionately as FDUTPA. For many years, this statute was out in the penumbra of the known galaxy of legal claims. It really wasn't used all that often and it seemed sort of vague in what it was supposed to do. In a nutshell, it prohibited anyone from engaging in any unfair or deceptive trade practice. Wow, that's not very illuminating.
If you read a little deeper, you learned that the "anyone" really meant people and entities who were engaged in some form of business with consumers, making it a consumer protection statute. When you dug even deeper, you learned that FDUTPA was a sort of state enactment of the FTC regulations (called the Little FTC Act- how original). But, most people didn't really have a need to use a statute like FDUTPA because there were other laws out there designed specifically to cover many significant consumer transactions- buying a house, a car, a boat, a mobile home, livestock, etc. A generic, nondescript statute like FDUTPA seemed to be a well-intended law without a home.
A shame really, because the statute has some nice features for consumers who used it. But, why bother with a statute that has sub-parts and technical language and a seeming lack of explanatory case law when you can just sue for good old fraud and hit the other guy up for punitive damages?
Well, enter the financial crisis of 2008. A year that saw great change in the law and the legal profession. Not only did we gain a new president, the grounds for healthcare reform (which may or may not be here by this time next year), but the legal profession had to take a good hard look at the tools in our toolbox to figure out how we were going to handle the hundreds of thousands of foreclosures, the rampant mistakes (and sometimes fraud) by banks and mortgage servicers, the over-stated values of property by appraisers and the unbelievable confusion over who actually owned certain loans created by investment bankers?
We certainly couldn't wait for new laws to be written. We had to work with what was out there. In the hunt, someone dusted off FDUTPA and breathed new life into it. With a little help from the legislature, FDUTPA was recently amended to broaden its application. Not only does it protect consumers, but it now protects commercial parties (meaning all you business owners out there).
What does this mean for you? It means, there's a whole new universe out there - both of opportunity and pitfalls. As consumers and commercial parties alike, you have a new avenue to redress wrongs based in some sort of misconduct by your seller or contracting party. The vagueness of the statute now seems to be part of its beauty. I've seen it applied to real estate transactions, loans, distributorship agreements, auto lease arrangements and re-financing contracts.
What do I mean? If you are buying groceries, for instance, and you notice that the supermarket overcharged you randomly for some items, you would probably let it go. But suppose, when you back next week, you see that there are more overcharges. You go back a third time and there are still more. Now, you may have a "practice" that is intended to hurt you, the consumer. Assuming the supermarket wasn't just employing a cashier with really inaccurate fingers, such a practice could be a FDUTPA violation.
There are a lot of reasons (read: technical) lawyers like FDUTPA in the new economy- it's not as hard to prove as fraud, there is no need to prove an intent to deceive (like in fraud), the plaintiff can recover his/her/its attorneys' fees and the statute is not barred by the economic loss rule (which, if you really want to know about, you should e-mail me and then get your head examined).
So, FDUTPA has taken on new life in the last few years and I think it's going to be here to stay. So welcome.....and watch out!
Sunday, December 5, 2010
Second Player, Second Amendment
Knives. We all have them. They're in the kitchen, in the garage, used by firemen, movers, paramedics, surgeons and warehousemen. They are also the newest weapon in the constitutional debate over the right to bear arms guaranteed by the Second Amendment to the U.S. Constitution.
Check out the article in the N.Y. Times www.nytimes.com/2010/12/05/us/05knives.html?_r=1&ref=us. It raises a lot of questions about whether we should treat pocket knives like Glocks. Are they the same thing? Because we all have them, we don't really seem to think of knives as weapons and certainly not on the same level as guns. We use them to cut our food, clean our fish and open packages. Should they be regulated like guns? A lot of states are starting to think about knives and easing restrictions on their use, handling and the right to carry. Arizona and New Hampshire are relaxing their formerly tight restrictions in favor of letting people carry knives in public.
So, without trying to sway any of you one way or the other, I put it to you - what do you think? Should knives be treated like guns or subject to a different set of standards? Should people be allowed to carry them in public? Should people be required to obtain a license to carry a knife? Should their be a restriction on the size or type of knife a person can carry in public? What about whether such restriction should extend to a person's home? Let me hear your thoughts. I'm always amazed at what everyone comes up with.
Have a good week everyone!
Check out the article in the N.Y. Times www.nytimes.com/2010/12/05/us/05knives.html?_r=1&ref=us. It raises a lot of questions about whether we should treat pocket knives like Glocks. Are they the same thing? Because we all have them, we don't really seem to think of knives as weapons and certainly not on the same level as guns. We use them to cut our food, clean our fish and open packages. Should they be regulated like guns? A lot of states are starting to think about knives and easing restrictions on their use, handling and the right to carry. Arizona and New Hampshire are relaxing their formerly tight restrictions in favor of letting people carry knives in public.
So, without trying to sway any of you one way or the other, I put it to you - what do you think? Should knives be treated like guns or subject to a different set of standards? Should people be allowed to carry them in public? Should people be required to obtain a license to carry a knife? Should their be a restriction on the size or type of knife a person can carry in public? What about whether such restriction should extend to a person's home? Let me hear your thoughts. I'm always amazed at what everyone comes up with.
Have a good week everyone!
Friday, October 22, 2010
It's Over- And It Only Took 33 Years
As many of you know, I am a board member of the Family Resource Center of South Florida, which is a maintstay of local foster care. An issue we've closely observed for some time (and I discussed once in an earlier entry) was Florida's unfortunate stance as the only state left that prohibited formal adoption of children by gay men and women. Well, after 33 years, that prohibition has finally come to an end. Below is the CNN article from its website.
CNN) -- Florida's ban on adoptions by gay men and lesbians came to an official end Friday.
Attorney General Bill McCollum said the case that led to the overturning of the state's 33-year-old law wasn't the "right case" to take to the state's Supreme Court.
Licensed foster parent Frank Martin Gill had sued to have the ban overturned. He wanted to adopt two boys who had been placed in his care after the Florida Department of Children and Families removed them from their home for neglect.
Gill and his partner have been raising the boys for six years.
"We are relieved that this process has finally come to an end, and that we can focus on being a family," Gill said in a statement released Friday. "All children deserve a chance at finding a stable, loving and permanent home. Over the 33 years of the ban, this archaic law has harmed countless foster children by denying them a forever family."
Earlier this month, the Department of Children and Families announced it would not appeal a September decision by the state's 3rd District Court of Appeal that found the law unconstitutional.
"We had weighed an appeal to the Florida Supreme Court to achieve an ultimate certainty and finality for all parties," said Joe Follick, the department's communications director.
"But the depth, clarity and unanimity of the DCA opinion -- and that of Miami-Dade Judge Cindy Lederman's original circuit court decision -- has made it evident that an appeal would have a less than limited chance of a different outcome."
The appeals court opinion made adoption possible for gay and lesbians in Florida statewide.
The state agency said it has removed from adoption forms the question about an applicant's sexual orientation. Gov. Charlie Crist ordered the department to stop enforcing the law after Lederman's ruling.
Florida was the only remaining state to prohibit gay adoption.
Brandon Hensler of the American Civil Liberties Union of Florida told CNN it is possible that some other case might try to challenge the court decisions, but he thinks such a move is unlikely.
Gill and his supporters planned to celebrate McCollum's decision late Friday.
Congratulations to every one who made this happen and for standing up for foster children, gay men and women and, oh yeah, doing the right thing.
CNN) -- Florida's ban on adoptions by gay men and lesbians came to an official end Friday.
Attorney General Bill McCollum said the case that led to the overturning of the state's 33-year-old law wasn't the "right case" to take to the state's Supreme Court.
Licensed foster parent Frank Martin Gill had sued to have the ban overturned. He wanted to adopt two boys who had been placed in his care after the Florida Department of Children and Families removed them from their home for neglect.
Gill and his partner have been raising the boys for six years.
"We are relieved that this process has finally come to an end, and that we can focus on being a family," Gill said in a statement released Friday. "All children deserve a chance at finding a stable, loving and permanent home. Over the 33 years of the ban, this archaic law has harmed countless foster children by denying them a forever family."
Earlier this month, the Department of Children and Families announced it would not appeal a September decision by the state's 3rd District Court of Appeal that found the law unconstitutional.
"We had weighed an appeal to the Florida Supreme Court to achieve an ultimate certainty and finality for all parties," said Joe Follick, the department's communications director.
"But the depth, clarity and unanimity of the DCA opinion -- and that of Miami-Dade Judge Cindy Lederman's original circuit court decision -- has made it evident that an appeal would have a less than limited chance of a different outcome."
The appeals court opinion made adoption possible for gay and lesbians in Florida statewide.
The state agency said it has removed from adoption forms the question about an applicant's sexual orientation. Gov. Charlie Crist ordered the department to stop enforcing the law after Lederman's ruling.
Florida was the only remaining state to prohibit gay adoption.
Brandon Hensler of the American Civil Liberties Union of Florida told CNN it is possible that some other case might try to challenge the court decisions, but he thinks such a move is unlikely.
Gill and his supporters planned to celebrate McCollum's decision late Friday.
Congratulations to every one who made this happen and for standing up for foster children, gay men and women and, oh yeah, doing the right thing.
Sunday, September 12, 2010
Fraud = Punishment
And another weekend comes to an end...
In a new era of corporate and financial accountability, witch hunts for investment bankers and portfolio managers whose greed purportedly brought about the end of civilization as we knew it (from 2002 to 2008, anyway) and figuring out how to regain some of the easier living many of us enjoyed just a few years ago, the word "fraud" has made a new resurgence in my business.
The term is used a lot - an awful lot. It's use as a legal tool is relatively rare, though, largely because it is tough to prove and other legal claims are better suited to redress a particular situation that a client thinks may be fraud. That said, the last two years seems to have given new fuel to the fraud fire and many clients and lawyers seem happy to stoke it.
The renewed interest and popularity seems to have a lot to do with, not so much the fact that there has been or is more fraud around (although it's certainly a possibility), but with the potential for greater gain. You see, most causes of action are intended to recover the losses you sustained. The law is designed, largely, to put you in the position you would have been in but for the events that brought you to litigation.
Fraud and a handful of other claims, however, can get you something else- punitive damages (which I have also addressed in an earlier blog posting). In other words, a jury can award money can just as punishment - a message to the defendant and the world at large that the defendant's conduct is not sanctioned and deterred.
This is, in part, what seems to make fraud so attractive to plaintiffs now. Not only can they recover what they lost, but they can try to gain something extra if they package their claims correctly. Now, unlike what most people seem to think and what t.v. portrays, we lawyers can't just weave a fraud claim out of thin air because we feel like it or because we have some special manipulation skills. You actually have to have the facts and circumstances that support fraud. I do find, however, that the courts seem to be a little more lenient on what can stand as a fraud claim versus what was allowed to stand just a few years ago.
By and large, the law is not intended to be a profit-making vehicle, but that doesn't mean clever plaintiffs haven't and won't continue to try to use it just for that. Of course, those really defrauded will simply continue to use it as a means to vindicate their rights.
Happy Monday, everyone.
In a new era of corporate and financial accountability, witch hunts for investment bankers and portfolio managers whose greed purportedly brought about the end of civilization as we knew it (from 2002 to 2008, anyway) and figuring out how to regain some of the easier living many of us enjoyed just a few years ago, the word "fraud" has made a new resurgence in my business.
The term is used a lot - an awful lot. It's use as a legal tool is relatively rare, though, largely because it is tough to prove and other legal claims are better suited to redress a particular situation that a client thinks may be fraud. That said, the last two years seems to have given new fuel to the fraud fire and many clients and lawyers seem happy to stoke it.
The renewed interest and popularity seems to have a lot to do with, not so much the fact that there has been or is more fraud around (although it's certainly a possibility), but with the potential for greater gain. You see, most causes of action are intended to recover the losses you sustained. The law is designed, largely, to put you in the position you would have been in but for the events that brought you to litigation.
Fraud and a handful of other claims, however, can get you something else- punitive damages (which I have also addressed in an earlier blog posting). In other words, a jury can award money can just as punishment - a message to the defendant and the world at large that the defendant's conduct is not sanctioned and deterred.
This is, in part, what seems to make fraud so attractive to plaintiffs now. Not only can they recover what they lost, but they can try to gain something extra if they package their claims correctly. Now, unlike what most people seem to think and what t.v. portrays, we lawyers can't just weave a fraud claim out of thin air because we feel like it or because we have some special manipulation skills. You actually have to have the facts and circumstances that support fraud. I do find, however, that the courts seem to be a little more lenient on what can stand as a fraud claim versus what was allowed to stand just a few years ago.
By and large, the law is not intended to be a profit-making vehicle, but that doesn't mean clever plaintiffs haven't and won't continue to try to use it just for that. Of course, those really defrauded will simply continue to use it as a means to vindicate their rights.
Happy Monday, everyone.
Wednesday, June 30, 2010
No, Your Wife Did Not Make You Say It
Here's one for the married people out there. Sure, you get taxed differently and you no longer own anything separate from one another, but there is a legal advantage that comes out of the deal (disclaimer: This blog is not intended to examine, explore or delve into the emotional, spiritual or personal value of any marriage or serve as a commentary thereon. As a less than amateur observer and attorney, my comments here are strictly legal and should not and are not intended to be a value based judgment of your relationship or that of anyone like you). You get to refuse to disclose any conversation had with your spouse.
It's right there in Florida's Evidence Code. There is a specific privilege that recognizes the sanctity and confidentiality of communications between husband and wife. It states:
"A spouse has a privilege during and after the marital relationship to refuse to disclose, and to prevent another from disclosing, communications which were intended to be made in confidence between the spouses while they were husband and wife."
The law here plainly acknowledges that spouses are likely to share and discuss the most sensitive of issues and in a way that delves into the merits of legal disputes, considers their value and even tactical decisions (at least, if your a good husband you will). The law does not want to impose a chilling effect on marriage by allowing the conversation you had with your wife about the auto accident you were just to be examined in a legal dispute. It's bad enough you didn't tell her about the fantasy football league your playing in again. Imagine if you couldn't discuss what went on in your day for fear that it would be used against you in court (instead of being used against you at home whenever). Not many marriages would survive that. So, the law has followed a larger and greater societal norm by enacting rules that protect the sanctity of marriage.
And you said the law was heartless.
It's right there in Florida's Evidence Code. There is a specific privilege that recognizes the sanctity and confidentiality of communications between husband and wife. It states:
"A spouse has a privilege during and after the marital relationship to refuse to disclose, and to prevent another from disclosing, communications which were intended to be made in confidence between the spouses while they were husband and wife."
The law here plainly acknowledges that spouses are likely to share and discuss the most sensitive of issues and in a way that delves into the merits of legal disputes, considers their value and even tactical decisions (at least, if your a good husband you will). The law does not want to impose a chilling effect on marriage by allowing the conversation you had with your wife about the auto accident you were just to be examined in a legal dispute. It's bad enough you didn't tell her about the fantasy football league your playing in again. Imagine if you couldn't discuss what went on in your day for fear that it would be used against you in court (instead of being used against you at home whenever). Not many marriages would survive that. So, the law has followed a larger and greater societal norm by enacting rules that protect the sanctity of marriage.
And you said the law was heartless.
Monday, June 28, 2010
It's All About Character
In this line of work, I often feel a little something like those movie characters called upon to kill and who do so with great reluctance. Not that I'm ever called upon to do anyone in - physically. But, it's not uncommon for clients to recruit me as a sort of character assassin. Yes, a lot of clients are more than happy to use a public forum to air their dirty laundry or at least air their adversary's.
It's a sad reality, but a reality all the same. Clients often want to make the other guy look bad almost as much as winning.
You should know that there are rules against this. Florida law does not really allow for the use of character evidence at the trial of any cause except for some pretty limited circumstances. As a general rule, then, the fact that Mr. Smith beats his dog and hates his kids is not really going to come into your lawsuit with him over the fact that his elm tree has grown over into your yard and damaged your house.
So, who cares - right? Well, some months back I warned you about putting your whole life out on internet. You remember - Facebook and My Space are fun tools but can be the gateway to a whole host of issues. Well, as it turns out, the same rules of evidence that regularly apply to character evidence can apply to your Facebook and MySpace accounts.
Just a few weeks back there was a case that ruled that information contained on a party's MySpace page was inadmissible character evidence and efforts to introduce it amounted to the character assassination I was lamenting above. This should give you some measure of comfort knowing that, while you may be ok with your most awful moments of all time being photographed and put up on Facebook, they won't likely be admissible to show that you were responsible for running over Mrs. Jones' cat.
It's a sad reality, but a reality all the same. Clients often want to make the other guy look bad almost as much as winning.
You should know that there are rules against this. Florida law does not really allow for the use of character evidence at the trial of any cause except for some pretty limited circumstances. As a general rule, then, the fact that Mr. Smith beats his dog and hates his kids is not really going to come into your lawsuit with him over the fact that his elm tree has grown over into your yard and damaged your house.
So, who cares - right? Well, some months back I warned you about putting your whole life out on internet. You remember - Facebook and My Space are fun tools but can be the gateway to a whole host of issues. Well, as it turns out, the same rules of evidence that regularly apply to character evidence can apply to your Facebook and MySpace accounts.
Just a few weeks back there was a case that ruled that information contained on a party's MySpace page was inadmissible character evidence and efforts to introduce it amounted to the character assassination I was lamenting above. This should give you some measure of comfort knowing that, while you may be ok with your most awful moments of all time being photographed and put up on Facebook, they won't likely be admissible to show that you were responsible for running over Mrs. Jones' cat.
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