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trollIt’s almost never a compliment when someone is referred to as a troll, but in the case of patent extortionists, it is an accurate and richly deserved description. Patent trolls are technically called  “non-practicing entities” (NPE) or Patent Assertion Entities (PAEs), but these euphemisms provide only a dim definition of what they are all about. And they pose a unique challenge to small business owners.

Whatever you call them, they all have a common business model: they purchase patent rights with the intention of generating fees through sketchy lawsuits or the threat thereof.  The patents themselves are generally obscure, shaky or acquired from bankruptcy.  Virtually none of them have ever been deployed legitimately in the marketplace, but that is not the intention of the trollsters. Rather, these organizations exist to exploit weaknesses in the U.S. Patent Office and legal system to generate bogus licensing revenue from legitimate businesses.

Generally, patent trolls have no assets other than the patents they intend to “protect.” They manufacture nothing and render no services. Many of the acquired patents were granted due to the Patent and Trademark Office’s systemic failure to keep up with a rapidly changing world over the past 30 years.  Quite simply, the federal agency has lacked the resources to determine what is really an “invention” in the context of the onslaught of digital technology.  In particular, the class of business method patents that arose that have arisen since 1998 has proven to be a thorn in the side of honest commerce.

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recording-policeIt is now legal in Illinois for citizens to record interactions with police without their consent, but it’s early in the game for too much celebration.

In 2014, the Illinois Supreme Court found the state’s strict eavesdropping law to be unconstitutional under the First Amendment (People v Clark).  Prior to that decision, Illinois had been an outlier among most states with regard to private citizens’ right to record law enforcement officials under any conditions. Most other states already allowed the taping of conversations with police or anyone else without obtaining all-parties’ consent or in most cases, without even letting them know they were being recorded.  But in Illinois, taping a conversation with a police officer without consent was a Class 1 felony with ten year prison potential.

Following that decision, it took a year for our state legislature to amend the Illinois Eavesdropping law, and now Illinois law gives citizens the right to record public conversations with police, arrests and other law enforcement activity without their consent.  720 ILCS 5/14-1 is an improvement.  Nothing promotes accountability like on the spot electronic documentation.

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teen-drinkingThrowing a party while Mom and Dad are out is a venerable teenage pastime, often regarded as naughty but ultimately harmless behavior.  For philosophically permissive parents, allowing the kids to have a party while the parents are home is sometimes regarded as a better alternative than letting their offspring run wild in the streets. According to this school of thought, “at least we know where they are.”

Unfortunately, there is an almost unlimited potential for things to go south when teens and alcohol/ drugs mix, and parents can end up holding the bag financially. When drunk or high party-goers are released into the world, they could get arrested, or  cause damage to property, or injury to themselves or others. They may kill themselves or someone else.  If any of these things happen, the parents of the hosting teens may well be held legally and financially responsible, even if they had no knowledge of the festivities or the illegal consumption of substances.

Whether or not the owners of the home end up being held accountable depends on a number of factors, some of which aren’t immediately obvious.

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shutterstock_143144308    In decisions involving two recent cases, the US Supreme Court has made subtle but important changes to the standards affecting retaliation and discrimination cases. By applying more stringent criteria in two areas, the Court has limited the ability of workers to file these types of lawsuits against business owners. The first criterion invokes a legally tricky principle called a “but for” causation standard and the second clarifies the definition of “supervisor.”

A complaining employee must establish what is known as a “but for” condition to satisfy the first criterion.  Specifically, the justices ruled that retaliation claims filed under Title VII of the Civil Rights Act of 1964 must be proven under this established legal principle. It is a term that lawyers are familiar with, but most business owners are not. In practice, it means that an act of discrimination – usually termination or demotion  –  must be shown to be contingent on a supervisor’s wish to retaliate against the employee.  By invoking this scenario, the plaintiff’s lawyer is compelled to convince a jury that the discriminatory action would not have taken place “but for” an conscious desire to punish or pay back the employee.  This concept is a little more accessible if we substitute the term “if it were not for” to replace “but for.”  For example, the supervisor would not have fired the employee if it were not for (but for) the supervisor’s desire for retribution against the employee for complaining about sexual harassment.

The second component of the ruling is more straightforward and involves redefining the term “supervisor” for purposes of discrimination cases.   In the case of University of Texas Southwestern Medical Center v. Nassar, the Court ruled that a supervisor is a person who has authority over the employee in the workplace, including the power to hire and fire.  More broadly, a supervisor has the power to hire, fire, promote, transfer or otherwise discipline an employee.  In that sense, the supervisor is a representative of the business ownership, who may be held legally accountable under the law.

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fraud     In a world preoccupied with internet spam and phishing attacks, beware the old school scalawags who operate their rip-offs through the U.S. mail!  Like their online counterparts, they are trying to lighten your wallet by offering bogus products – in this case “corporate compliance” services.

When your business registers with the State of Illinois, your company information becomes part of the public record and is readily available through the Secretary of State’s public databases. There are good reasons for this requirement. For one, it is important for customers and vendors to be able to confirm that you are a legitimate business. It is also necessary for various branches of government to be able to verify the company’s ownership and officer structure for the purposes of regulation and revenue collection.

Unfortunately, your contact information is also easily accessible to anyone who wants to send you solicitations in the mail. And not everyone who sends you mail has your best interests in mind. Focusing primarily on new business registrations, a specialized type of shady dealer out there is lurking, waiting to offer you their “help” in complying with government regulations. These promotional mailings are creatively worded to panic you into spending money for spurious compliance services, usually for hefty fees.

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facebook     The central tragedy of human existence is that our lives on the earthly plane are finite. Saint or sinner, the time must come when each of us departs this mortal coil.  But whether or not you believe in an afterlife, there is a higher power that dictates how one small slice of your legacy lives on – that power is Facebook.

As is the case with your other important assets and heirlooms, it now appears to be a key responsibility of your social media persona to arrange for a successor for your Facebook page.  Even if you have a legal executor for your “real world” estate, Facebook has recently determined that our state laws don’t apply to them and that you will need to name a manager to administer your page after your passing.   This Facebook as decreed.

Previous to this policy change, Facebook simply “memorialized” the pages of people who died when advised of their death. The deceased’s profile would be identified with a “Remembering” status, which allowed friends and visitors to share memories on the Timeline.  While family members could request that a page be taken down – a challenging process to be sure – they were not permitted to make any changes to the page.

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ada     As with most social engineering legislation, the Americans with Disabilities Act (ADA) was enacted with the best of intentions. Passed in 1990, one of the primary objectives of the ADA was to assure disabled citizens access to public places and private businesses – and that’s a good thing. But to accomplish this ambitious objective, the infamous Title III public accommodation section piled up sweeping regulations regarding parking, curb height, service counters, signage and the size of restrooms. If you own a building, lease office space or operate a business that serves the public, there is some component of your life touched by ADA Title III.

In terms of interpretation and implementation, the ADA was a mixed blessing from the beginning. Although it has undoubtedly accomplished a lot of what it was intended to do, it has also caused hardship for landlords and businesses when regulations were enforced too aggressively or applied unevenly.

But as unsatisfactory as ADA enforcement can be, no one could have anticipated something worse: a juggernaut of sham ADA lawsuits plaguing businesses of all types. With increasingly regularity, these so-called drive-by lawsuits are filed against individuals or organization on behalf of questionable plaintiffs whose sole interest is collecting a settlement. Typically, this litigation is initiated by disabled individuals who visit a building specifically to identify a “violation” and bring a bogus lawsuit.

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Illinois Employers beware of new law protecting Pregnant Employees

pregnancy-amendment     If you are an Illinois employer and haven’t yet taken action on the new pregnancy protection amendment to the Illinois Human Rights Act, it’s time to get moving.  The new amendment (HB0008), which went into effect January 1, 2015, provides additional protections against discrimination for pregnant women in the workplace.

Acknowledging that existing legislation had been inadequate, the new law prevents companies from firing or forcing expectant mothers to take unpaid leave.  The new law recognizes the obvious – that many women are now primary breadwinners for their families, a situation which can cause undue hardship if a worker loses her job due to pregnancy.  In addition to advancing the objective of gender equality, the new law also states that enabling pregnant women to work through pregnancy is good for business in terms of worker productivity, retention and morale, while reducing re-training and health care costs.  While most people understand that more equality is a moral imperative, it’s easy to forget that social progress is also sound business policy.

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forced-arbitrationGeneral Mills gave itself something of a Public Relations black eye when it got caught slipping some tricky new language into its “terms of service” agreement. Unnoticed by most consumers, the company had imposed restrictive new legal conditions on anyone who unsuspectingly redeemed an online coupon for a cereal or baking product, or clicked “Like” on a General Foods Facebook page, or entered a sweepstakes or otherwise received a “benefit” from the company (other than, for example, the thrill of watching one’s children savor their Count Chocula).

The updated language took away the consumer’s right to sue General Mills in court and required them to submit to submit any grievances against the company to an arbitrator. It also banned them from participating in class action suits. Because they were engaged in routine online activities, few General Mills customers understood that they were entering into a contract at all, much less renouncing their right to sue the company.

This misdeed generated a few days of media outrage, and due to a furious – if short-lived – backlash the company was persuaded to rescind the new terms. But in reality, General Mills’ only “crime” was getting caught. Although the media chose this particular incident to spend fifteen minutes on, there was nothing illegal or even unusual about inserting restrictive clauses into an online usage agreement. In fact, compelling consumers to surrender their right to legal redress in the courts – generally known as forced arbitration – is quickly becoming standard corporate practice.

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lllinois’ Medical Marijuana Program Act goes into full effect on January 1, 2015.

jointIt may not be the top item on your “things to deal with in the New Year” list, but if you are a small business owner or corporate manager Illinois’ new Compassionate Use of Medical Cannabis Pilot Program Act may turn out to be an unwelcome part of your professional life.  Originally passed in 2013, 410 ILCS 130 was partially rolled out Jan 1, 2014 but will become fully functional when the clock strikes midnight December 31.  Interestingly, the Act is scheduled to be repealed in 2018, probably about the time the kinks have been worked out in terms of real world implementation.

Far short of legalizing marijuana, these statutes authorize a four year pilot program allowing the distribution of cannabis for medical use under rigidly proscribed circumstances. The Act provides for legal treatment of pain and suffering for specific debilitating afflictions, including cancer, multiple sclerosis, and HIV/AIDS, hepatitis C, Crohn’s disease, arthritis, lupus and residual limb pain. Medical cannabis can only be prescribed by a doctor of medicine or osteopathy licensed under Medical Practice Act of 1987 and the issuer is required to have a controlled substances license under Article III of the Illinois Controlled Substances Act. There are also numerous provisions regulating the cultivation and distribution of this new ancient pain remedy.

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