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Let’s read the entire passage: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”  – First Amendment to the U.S. Constitution

Bellas&Wachowski2The First Amendment to the Constitution, especially in the digital age, is often cited inappropriately.  When a blog writer removes a comment, many a troll has squealed that his First Amendment rights are being violated.  When someone says something wildly stupid in public and reaps a storm of criticism, she, too, may scream about “freedom of speech.”  

All of us do indeed have freedom of speech, but that only means that the government cannot muzzle us.  It does not mean that a web site that accepts comments is obligated to let anyone say anything they wish. And it does not mean that there are no consequences to exercising your rights.  Donald Sterling, the putative owner of the L.A. Clippers basketball team, had every right in the world to give voice to his racist thoughts.  Everyone else had the right to call him a racist dirtbag and demand that the NBA encourage him to sell the team.  But, there are always consequences. 

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Bellas&Wachowski4After hiring a new employee, Acme Corp. spends months training Louie Duck for the position. He learns how Acme delivers a Rocket-Powered Unicycle only seconds after an order is dropped in a remote mailbox. He learns the secret of making both Earthquake Pills and Dehydrated Boulders. Mr. Duck even learns how the company thrives in the face of what must be a legion of product liability lawsuits.

And just when Acme feels that Mr. Duck is beginning to contribute to its bottom line, he quits. Not only does he quit, but he starts his own company, Ajax Corp., that sells products that are remarkably similar to Acme’s Jet-Propelled Tennis Shoes and Do-It Yourself Tornado Kits. And on his way out, Mr. Duck also convinces Acme’s best customers, one Mr. Coyote, to send all of his future business his way.

Lucky for Acme, Mr. Duck signed a noncompete agreement when he was hired. The agreement barred him from working in a similar company or from starting a similar business for a minimum of five years. Acme thinks it should have no trouble in shutting down its new competitor. But if Acme takes the case to court, it may find that the agreement is not worth the paper it was written on, depending on where the case is heard.

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Who Gets To Keep The Ring When A Betrothal Goes South?


Bellas&WachowskiproposalIn these modern times, it is not enough for a young man to get down on one knee and ask the woman of his dreams for her hand in marriage. The expectation today seems to require an over the top public spectacle, perhaps involving a giant screen at a ballpark or a Harry Potter themed set piece posted to social media. A massive waste of money or time is always considered an appropriate supplementary feature for this sort of enterprise.

While public displays of narcissism may be consistent with the modern Zeitgeist, the one thing they don’t accomplish is ensuring that the engaged parties remain engaged. Indeed, the marriage proposal experience may turn out to be the high point of the relationship. Those who keep track of such statistics claim that anywhere from 15% to 25% of twenty-first century engagements are broken before the wedding. While no one knows the statistics for sure, the numbers are high enough to keep websites such as www.idonowidont.com. The site not only provides an online aftermarket for reselling disrupted nuptial jewelry, it also includes the founder’s sad tale of his own broken engagement as inspiration for his business model.

Which segues nicely into today’s topic: what happens to the engagement ring when the big day is called off? Does the woman get to keep and possibly sell it if the man backs out of the agreement? Does she need to return it to the man if she decides to forego the walk down the aisle? And are there circumstances which would complicate the matter further, such as terminating the engagement for cause?

In simpler times, it was generally understood that the woman would return the engagement ring. In 1922, the estimable Emily Post* decreed that the prospective bride should return the ring regardless of the circumstances of the breakup. It was and to some degree still is considered the proper thing to do.

But while custom and tradition may deem returning the ring to be the correct standard of behavior, the legal landscape has changed with the changing times. In a society that seems at once both more acquisitive and more litigious, the legal standard for ring returns has become more complex. Today, the protocol for who gets the ring is determined by state law, and there is some variation in how individual state courts perceive the topic.

Courts generally treat an engagement ring as a gift from the donor (normally the male) to the donee (normally the female). To be considered a legal gift, three provisions must be fulfilled: the donor must intend to give the ring as a gift, the donor must deliver it the donee, and the donee must accept the item. If the person to whom the ring was given can demonstrate all three elements, the court will consider the ring to be a gift. The crucial question is whether or not the gift is conditional, that is, is it a form of contract contingent upon the marriage taking place. In most states around the country, the answer is yes. With one exception, state courts find that the gift of an engagement ring incorporates an implied condition of marriage. The mere acceptance of the gift is not part of the contract.

Illinois is a relatively straightforward state when it comes to this question. An engagement ring is viewed as a gift in contemplation of marriage:

“…a gift given in contemplation of marriage is deemed to be conditional on the subsequent marriage of the parties, and the party who fails to perform on the condition of the gift has no right to property acquired under such pretenses.”

Because the gift is conditional on the eventual marriage of the parties, the party who fails to perform has no right to the property in Illinois. If the bride-to-be breaks off the engagement, the ring is returned to the man. However, if the man breaks off the relationship, the woman may keep the ring because it was not her fault that the condition was not met. In cases in which the engagement is broken off by mutual agreement, the ring is to be returned to the donor…the erstwhile groom.

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DCF 1.0Since February, GM has recalled over 3,000,000 cars because of a problems with air bags, wiring, and faulty ignition switches that could shut off when the car was being driven. The National Highway Traffic Safety Administration (“NHTSA”) received more than 260 complaints about the problem, which has been linked to at least 12 deaths. In a classic understatement, GM’s CEO Mary Barra said, “Something went wrong with our process in this instance, and terrible things happened.”

Terrible? But did Barra mean this was terrible for the driving public, or terrible for GM? After all, the largest U.S. automaker has known about the problem since 2004. So for 10 years, GM has known that some of its vehicles were prone to shut off at high speeds, disabling the power steering and the air bags. And the company said nothing. The silence of GM is being investigated by NHTSA, Congress and the Justice Department because the longer GM kept its mouth closed, the more people died. Kind of like what happened with the detreading of the Firestone Tires on Ford Explorers in 2000 that resulted in over 200 deaths and countless injuries.

For a full time line of events, go to the Safety Research & Strategies website.

Even after GM issued the recall notice, it has refused to release the names of the 13 people killed in defect related accidents. Not to the public and not to the families of those who were killed. “To date they’re guarding (the list of names) extremely carefully,” said Lance Cooper, a personal injury attorney who represented the family of a woman killed in a 2010 crash. “They continue to hold it as protected information. I don’t believe there’s any legal obligation to release the names.” Maybe GM doesn’t have a legal obligation to release the names, but as Cooper said, there are moral and ethical obligations to consider.

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file0001718693091Computer users would be well advised to remember TANSTAAFL when they’re online. TANSTAAFL, an acronym popularized by Robert A. Heinlein in his 1966 novel, The Moon is a Harsh Mistress, translates to: “There ain’t no such thing as a free lunch.”

A fairly common “free lunch” on the Internet is a popup that warns you that your computer is infested with all sorts of nasty programs that are doing all sorts of nasty things, from slowing down your machine to giving criminals all the information they need to clean out your bank account. But the popup offers a FREE solution to your problems – a FREE scan that will find and eradicate all of the bad stuff hiding out in your machine. That FREE scan invariably finds scores of problems with your computer. And now all you need to do to get rid of those problems is to “register” the software. The FREE solution ends up costing you $40 to $60. But it was worth it, wasn’t it, to get rid of malware and adware and spyware?

The problem is, the WinFixer® or WinAntiVirus® you downloaded didn’t actually find anything on your computer. In fact the software never even looks. And if there were any malicious software on your computer, neither program would do anything about it. In fact, the software would “find” malware on a computer that had never before been connected to the Internet. But WinFixer® and others of its ilk were not actually designed to fight malware. The programs were written to frighten you into parting with some of your money.

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Crowd Funding. Wordcloud Concept.Your startup needs an infusion of capital.  You’ve tapped your savings and retirement account, the bank’s loan officer begins to shake his head as soon as you walk in the door and your family and friends send your calls to voicemail.

So you hear about this new thing called crowdfunding.  You go to Kickstarter™ or RocketHub™, web sites that allow a person or business to turn to the public to raise money.  Your campaign is successful and you have $100,000 to keep the party rolling. 

Sounds like you’re a winner, right?   Wrong!  Leave it to the SEC – that’s the government agency that monitors securities and investments – to put a damper on things for you.  As authorized under the JOBS Act passed in 2012, the SEC has proposed new reporting requirements for companies that use crowdfunding.  The proposed rules, which will allow a company to raise up to $1 million a year, are not as stringent as those for a public offering, but they may make crowdfunding much less attractive for small businesses looking to raise capital.

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CNN reported recently that Jonathan Martin will not return to the NFL this season. Martin was a tackle for the Miami Dolphins who left the team because of what he alleges was, in a word, bullying.

lockerroomMartin is an unlikely victim. He’s about six and half feet tall and weighs more than 300 pounds. He was a starter on the Stanford football team and was an honorable-mention All-Pac-10 selection and second-team freshman All-American. The Dolphins selected Martin in the second round of the 2012 NFL draft. Getting on Martin’s wrong side is not something most of us would consider to be a survival trait.

Enter Richie Incognito. In reports published in the sports press, Martin alleged that Incognito subjected him to severe verbal abuse, among other things. The particulars of the case have played out over the past couple of weeks, but among the more interesting tidbits is that Incognito’s conduct may have been the result of taking orders from Dolphin coaches to “toughen up” Martin were taken too far.

boardroomBullying, of course, is not limited to the locker room. People who get a kick out of tormenting another human don’t magically disappear after leaving high school. They grow up and get jobs. And your office may not be immune.

There are a multitude of laws banning discrimination and sexual harassment in the workplace, but there are no laws that say workers have to be nice to each other. Left unchecked, though, workplace bullying can lead to a substantial hit to your bottom line.

According to the Workplace Bullying Institute—and yes, there is such a thing—up to a third of workers report being the target of bullies while on the job. The targets report higher levels of anxiety and stress and lower levels of productivity. A bully can lead to higher levels of absenteeism and turnover. A WBI team at Griffith University in Australia estimate that bullying costs companies between $6 billion and $13 billion annually. Continue reading

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OLYMPUS DIGITAL CAMERAEMPLOYEES – CHECK YOUR WEAPONS AT THE DOOR!

 

Illinois became the last state to pass legislation authorizing the concealed  carrying of firearms by enacting the Firearm Concealed Carry Act.  What does this mean for employers and what is the rule for having guns in the workplace?  

 The Act allows a concealed carry license holder to carry a loaded or unloaded firearm fully concealed or partially concealed on or about his person or his vehicle.  In order to obtain a concealed carry license, the individual must be at least 21 years old; have a current Firearm Owner’s Identification card (“FOID”); not have been found guilty of a misdemeanor involving physical force or violence or two or more DUI violations in the preceding 5 years; not be subject to an arrest warrant; not having been in a residential or court ordered treatment program for drugs or alcohol in the last 5 years; and complete 16 hours of firearm training and education.

Regardless of the right to carry a concealed weapon, there are certain places where it is still illegal to have such a concealed weapon. Prohibited areas include:

·      Pre-school, daycare, elementary school, secondary school, college or university;

·      Any government building or court;

·      Any hospital, mental health or nursing home

·      Any establishment where more than 50% of the gross receipts are from the sale of alcohol (bars)

·      Public playgrounds or parks

·      Casinos

·      Sports stadiums

·      Airports

·      Amusement parks or zoos

 

Before employers start running for the doors believing their places of business will become a haven for gun toting employees, there are a few items that need to be addressed.

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Mandatory Arbitration: Friend of Big Business and Enemy of Consumers?

Virtually every consumer contract now contains a mandatory arbitration clause that reads something like this: “All claims and disputes arising under or relating to this agreement are to be settled by binding arbitration.”  That sounds innocuous enough, at least until you find out what binding arbitration really means.

952313_79933908According to a report from the American Association for Justice, mandatory binding arbitration is a “license to steal.”  An example they use bears this out:  Back in 1998, an 81-year-old woman named Mabel Strobel was a client of Morgan Stanley Dean Witter.  On the advice of her broker, Strobel sold a rental property in San Diego and invested the proceeds in the stock market.  In the next four years, through the magic of the market, Morgan Stanley turned her $1 million investment into about $700,000.  Strobel claimed the company inappropriately invested her money, considering her investment objectives, risk tolerance and sophistication.  Unfortunately, the contract Strobel signed with the brokerage contained an arbitration clause.   So she brought an arbitration case against Morgan Stanley.  In 2004, an arbitration panel sided with Strobel, holding the brokerage liable for her losses.  So we have a happy ending for the consumer, right?

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Seattle rolled over Denver in Super Bowl 48, but according to that most reliable source—somebody on the Internet, Challenger, Gray & Christmas in this case—the day after the Super Bowl costs American businesses $850 million in lost productivity.  People call in sick because of overindulgence, or come into work hung over, or spend an inordinate amount of time talking about the game, to the detriment of getting something done.

Of course, the Super Bowl isn’t the only thing sapping productivity.  Fantasy football allegedly costs employers $1.1 billion a week, so with a 17 week season, that adds up to $18.7 billion annually, a figure ignores the draft and the preseason, but whatever.  ($19.55 billion total.)

Other sporting events also take a toll: March Madness? $192 million.  ($19.74 billion) Fantasy baseball? Couldn’t actually find any figures, so I’ll assume that it is not as popular as fantasy football, making the weekly figures smaller.  But the season lasts about six months, so we’re going to assign it the same cost as football, at $18.7 billion.  (Total, $38.44 billion) The fantasy baseball number is the last that is not backed up by that most reliable source.

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