Class Action & Mass Torts

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QUESTION: I CAN’T BELIEVE I MADE THAT STUPID GIFT, CAN I GET IT BACK?

ANSWER:  EVEN GIFTS MADE IN CONTEMPLATION OF MARRIAGE ARE NOT RETRIEVABLE!

We are all familiar with buyer’s remorse and hopes to rescind a contract.  But, can we get back gifts we later regret having made?

Almost seventy years ago, this issue was presented to Judge McGivern in Splendore v. Guglielmo the Supreme Court, Special Term, New York County, 205 Misc. 941 (1954).

Why did the donor want the gift back?

As Judge McGivern said:

“In Manhattan’s East Harlem, on the fiesta of Our Lady of Mt.
Continue Reading Irrevocable Gifts?

lindsay-henwood-7_kRuX1hSXM-unsplash steps succession planning Photo by Lindsay Henwood on Unsplash
Photo by Lindsay Henwood on Unsplash

QUESTION:    HOW CAN I KEEP MY BUSINESS GOING AND EVENTUALLY TRANSFER IT?

ANSWER:       SYSTEMIC BUSINESS SUCCESSION PLANNING CAN KEEP YOUR BUSINESS INTACT THROUGH THE UNCERTAINTIES AND CERTAINTIES OF BUSINESS CYCLES AND LIVES.

People die, get divorced, become disabled, or simply get mad at each other.  Businesses and markets expand and contract.  Capital and financing dry up.  Business cycles come and go, businesses thrive and fail.  How do you keep the enterprise on a solid footing through all of the vagaries of business and life?

Let’s start with the basics!

What is the Business and Who Owns It?

What kind of…
Continue Reading Succession planning for business

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QUESTION:     CAN I EVICT MY DELINQUENT RESIDENTIAL TENANT?

ANSWER:        THERE IS NO LONGER A FEDERAL MORATORIUM AGAINST EVICTIONS OF RESIDENTIAL TENANTS

What was Covered by the Nationwide Moratorium on Evictions of Residential Tenants?
“The Director of the Centers for Disease Control and Prevention (CDC). . . imposed a nationwide moratorium on evictions of any tenants who live in a county that is experiencing substantial or high levels of COVID-19 transmission and who made certain declarations of financial need.”  Alabama Association of Realtors et al. v. Department of Health and Human Services et al., 594 U.S. _______ (2021).
The…
Continue Reading Residential Evictions

QUESTION:     DO CHANGES TO RECEIVERSHIP LAW MATTER TO MY COMPANY?

ANSWER:        THE UNIFORM COMMERCIAL REAL ESTATE RECEIVERSHIP ACT CAN REALLY HELP YOU OR REALLY HURT YOU.

What are the statutory powers of these new receivers?

The Uniform Commercial Real Estate Receivership Act (“UCRERA”) grants some of the most frequently used equitable powers of equitable receiverships to statutory receivers by default, with no specific court order needed.  The receiver by statutory authority has the ability to:

  • Control and manage property;
  • Operate a business related to receivership properties;
  • Pay debts related to receivership property;
  • Assert claims on behalf of parties

    • …
    Continue Reading When to Pass the Receiver

    QUESTION:     WHAT NOT TO DO WHEN APPEARING IN VIRTUAL COURT AS THE DEFENDANT?

    ANSWER:        DON’T MAKE YOUR TRAFFIC COURT APPEARANCE FOR A SUSPENDED LICENSE FROM THE DRIVER’S SEAT OF A CAR!

    Watch that Zoom background!

    By now we all have a list of stories of things that should have been done differently in virtual meetings.  Simple things like closing the closet door or moving the hamper of dirty clothes before starting the Zoom meeting are overlooked repeatedly. 

    One party made a virtual appearance in federal court without his shirt!  And by now everyone has seen the video of…
    Continue Reading Zoom Into Court

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    QUESTION:   WILL THE DEADLINES SET BY THE SMALL BUSINESS REORGANIZATION ACT OF 2019 ACTUALLY SPEED UP SMALL BUSINESS BANKRUPTCIES?

    ANSWER:    SMALL BUSINESS REORGANIZATIONS WILL ONLY BE FASTER IF THE DEADLINES ARE ENFORCED.

    Other than sunrise and sunset, few deadlines are self-enforcing!
    The mandatory expedited deadlines in the Small Business Reorganization Act won’t speed up cases unless judges enforce them.  If the Standing Trustees and the creditors actively urge courts to enforce the rules, there is a chance that small business reorganizations will be timely completed.

    What are the basics of the new Subchapter 5 Small Business Bankruptcies?
    Currently, small business…
    Continue Reading Streamlined small business bankruptcies?

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    QUESTION: SHOULD I WORRY ABOUT THE SMALL BUSINESS REORGANIZATION ACT OF 2019?

    ANSWER: CREDITORS SHOULD BEWARE OF SIGNIFICANT NEW PROTECTIONS BEING GIVEN DEBTORS UNDER THE SMALL BUSINESS REORGANIZATION ACT!

    The History of Small Business Bankruptcies.In October 2005, I wrote:The costs of a Chapter 11 bankruptcy reorganization are often more than a small business debtor can handle.  Statistics show that many small business Chapter 11 reorganization proceedings eventually become Chapter 7 liquidation proceedings.  Congress wanted to help small business debtors move through the bankruptcy process more swiftly and so it created the concept of the small business debtor. 

    Congress set the…
    Continue Reading The Small Business Reorganization Act: Blessing or Curse?

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    Photo by TJ Dragotta on Unsplash

    QUESTION:     HOW CAN REMOTE ONLINE NOTARIZATION WORK?

    ANSWER:        MANY STEPS ARE REQUIRED TO ASSURE THE ACCURACY AND INTEGRITY OF THE NOTARIZATION AND SIGNING PROCESSES.

    How could remote online notarization go awry?

    During my career I have been able to prove at least two fraudulent notarizations when the rules required pen and paper signatures in the physical presence of notaries.  I probably also dealt with a few fraudulent notarizations that I suspected, but could not prove.  The most blatant fraud was the time the notary’s certificate expiration stamp indicated that the notary’s certification had expired prior to the purported date of…
    Continue Reading Notarizing remotely!

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    QUESTION:    WHY ARE COMPANIES STILL STRUGGLING WITH ELECTRONIC TRANSACTIONS 20 YEARS AFTER THE LAWS SAID THEY ARE VALID?
    ANSWER:       PEOPLE HAVE DIFFICULTY UNLEARNING THOUSANDS OF YEARS OF RELIANCE ON HAND-WRITTEN SIGNATURES.
    The laws of electronic signatures and e-transactions.
    The Electronic Signatures in Global and National Commerce Act (“E-SIGN Act”) became the law of the United States on June 30, 2000. The Uniform Electronic Transactions Act (“UETA”) was released by the Uniform Law Commission in 1999 and enacted in Arizona in 2000.
    The E-SIGN Act allows the use of electronic records to satisfy any statute, regulation, or rule of…
    Continue Reading Beyond Pen And Paper… Digital Contracts

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    C’MON! IT’S ONLY A COMMA!!!???
    A MISSING COMMA COST ONE COMPANY FIVE MILLION DOLLARS!
     
    Oakhurst Dairy had to pay its delivery drivers five million dollars to settle a wage and hour dispute about overtime pay all because of a missing comma! O’Connor v. Oakhurst Dairy, 851 F.3d 69 (1st Cir. 2017).
    What does punctuation have to do with an employment dispute?
    “For want of a comma, we have this case.” That is how the court started its opinion concerning a dispute between a Maine dairy company and the dairy delivery drivers. The case involved the scope of an exemption…
    Continue Reading $5M in Overtime for Want of a Comma!

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    QUESTION:    I THOUGHT THAT ONLY THE COMPANY COULD BE PENALIZED FOR FAIR LABOR STANDARDS ACT VIOLATIONS?
     
    ANSWER:       WHEN A TEXAS ROPE COMPANY GOT TIED UP WITH THE DEPARTMENT OF LABOR, THE OWNER, PLANT MANAGER AND OFFICE MANAGER WENT TO JAIL!
     
    Numerous federal laws include civil liability for individuals who fail to comply with the laws. Some federal laws even provide for individual criminal liability for company owners and managers.
    Don’t let the boss rope you into breaking the law!
    The U.S. Attorney’s office charged that High Performance Ropes of America, Inc. did not pay overtime compensation,…
    Continue Reading Criminal Penalties for FLSA Violations?

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    QUESTION:    WE WORRY ABOUT GETTING SUED FOR FIRING PEOPLE, BUT NOW ARE WE BEING SUED FOR NOT FIRING SOMEONE?

    ANSWER:        NEGLIGENT HIRING, RETENTION AND SUPERVISION OF EMPLOYEES CAN COST YOUR COMPANY MONEY!

    Employers are conditioned by discrimination lawsuits to avoid background checks and to avoid disciplining and firing workers.  For example, so called “ban the box” statutes forbidding including questions about past criminal convictions on employment applications have caused employers to be lax in hiring standards. Wrongful termination lawsuits have made employers wary of disciplining or firing underperformers.

    Nevertheless, members of the public can and do sue companies…
    Continue Reading WATCH FOR ROGUE EMPLOYEES!