Thursday, April 24, 2008

Violation of Trade Secret

Violation of Trade Secret: How to Deal with it

Doing business involves various issues that necessitate careful planning and implementation in order to achieve success, financial stability or productiveness. Likewise, it is very vital for the company officials to employ strict rules in order to safeguard all their business operations and trade dealings. Yet, because of trade secret theft, many companies either suffer from losses or end up in closure.

Also because of such violations or illegal dealings, numerous lawsuits are being filed in courts by businesses to recover the cost of damages that they suffered from. A great example of such is the case filed by Tesla Motors against its competitor for allegedly stealing design ideas and trade secrets.

The definition of trade secret may vary depending on the state where a company operates. Yet, state laws generally define it as company information, which are not commonly known to the public majority. It provides a company of some economic advantages, which makes it worthy of being protected and of maintaining its secrecy.

Meanwhile, in order to protect your company from trade secret theft, following these measures may be helpful:

  • Let your employees sign a “Non-compete agreement.” – This type of contract will prevent your employee from working in your competitor’s company for a set period after his employment in your company ceases. In this way, they will not have the means of utilizing the information that they obtained from your company for the advantage of your competitors.

  • Avoid dealing with suspicious business transactions – Transact only with companies or individuals with proven integrity. Never divulge any of your company’s procedures to people whom you think unworthy of your trust.

  • Hire an attorney who has the expertise in intellectual property laws and other business laws – Having an attorney to give you advices will give your company the protection you need.

  • Treat your employees well – In many circumstances, employees who divulge company secrets are those who were discriminated or unfairly treated. It will also be helpful if you will give them proper trainings and provide their needs.

Tuesday, April 22, 2008

Is ERISA law sufficient in protecting working person’s rights?

The Employee Retirement Income Security Act of 1974 (ERISA) is a federal law that was passed to protect pension rights of workers in private industry. It covers most employee benefit plans, including disability, life, and medical insurance and pension benefits provided by an employer.

Nowhere in the provisions of the ERISA law that has it required an employer to establish a pension plan. It only requires that those who establish plans must meet certain minimum standards.

Standards such as,

1. Regularly providing participants with full and clear information about the plan including information about plan features, funding and how and when pension benefits can be collected.

2. Sets minimum standards for participation for pension plans, vesting, benefit accrual and funding.

3. Provide accountability of plan fiduciaries, especially in cases of breach.

4. ERISA law also mandates that a grievances and compliant department be established for plan participants.

ERISA Law also gives participants the right to sue for benefits, breaches of fiduciary duty and those who are waging prohibited actions under ERISA law.

The aforementioned are the protective measures that the ERISA law extends to the workers in general.

On this line, a question would be relevant, Is ERISA law sufficient in protecting working person’s rights. Put is differently, does it effectively cure the end it intends to achieve, which is protecting worker’s pension rights?

To note, ERISA law had replaced all state laws that protected an employee's rights to benefits from an insurance company or employee trust.

The effect had greatly affected vast majority of pension claimants. The changes had made the ERISA law takes precedence over state laws.

One has said that ERISA law has reduced rather than expanded the legal protections available to policyholders.

State law provides a higher level of protection to employees compared to ERISA, in cases of unjust denials of pension benefits


Various State laws provide an employee the right to jury trial and could receive constitutive damages aside from the benefits under the policy. In contrast, ERISA law there is no right to a jury trial.

On this score alone, a safe generalization can conclude that ERISA law provides legal obstacle rather than protection.

Having this law prevailed in our jurisdiction, we can do nothing except to accede to its mandate despite the pitfalls it brings.

Claimants having varied concern on this issue must settle with a lawyer who is adeptly knowledgeable with this law. The lawyer can be utilized give them the much-desired protection and at least level their playing field and made a fair chance on their claims.

Monday, April 21, 2008

Fault Issues in Premise Liability

The article “Casino Patron Suffers Severe Knee Injury on Escalator - Unreasonably Dangerous Condition on the Casino Premises”, posted on November 7 last year, highlights the result of an accident, which injured a casino client in an escalator.

The issue involved an injury suffered by a customer whose pants were entangled in an escalator. According to the article, the accident victim suffered serious knee injuries, along with other traumatic injuries, and required surgery.

As a result, the victim sued the property owner and held them responsible for her injuries under premise liability. The customer filed for for a $ 20,000 damage lawsuit .

When there is hazardous condition in a premise that results in harm and injury, an accident victim may file damages under the premise liability. By law, it is the responsibility of a property or business owner to make sure that no conditions exist that could cause a person to slip or trip and fall.

Slip and fall accidents happen most in poorly lit hallways, damaged staircases, uneven sidewalks, debris or liquids left on the floor, and other unsafe conditions.

In determining the fault of business or property owners under a premise liability, the three requisites must be proven:

  1. that the owner of the property or business caused the condition that resulted in the slip and fall accident

  1. that the owner knew about the hazardous condition but did nothing to remedy the situation

  1. the owner should have known about the unsafe condition and done something to fix it.

Under premise liability, a certain standard of care and “reasonableness” also applies to so-called licensees and invitees. Licensees are persons who enter a property on their own or as social guests of the property owners while invitees refer to people invited into the premises, such as a customer in a store.

There are several factors involved in determining whether the standard of reasonableness required by an owner toward licensees and invitees has been met. These include the following:

  • Circumstances under which the visitor entered the property

  • Foreseeability of the accident or injury that occurred

  • Use to which the property is put

  • Reasonableness of the owner/possessor's effort to repair a dangerous condition or warn visitors

The standard of care applied by a property owner may help determine the extent of one’s fault in an accident.

The Bearings of Sales Covenant

A common saying in commercial transactions relates, “Time is of the essence”. The implication of this observation is more on practicality and convenience. That, as much as possible commercial dealings must be closed at the earliest.

To achieve this end, a sales agreement was devised to facilitate commercial transactions among merchants and consumers.

Sales agreement is sanctioned in all jurisdictions around the globe. Specific laws of each jurisdiction are legislated regulating its provisions, stipulations and constitution.

A sales agreement is a contract that deals in the exchange of goods, services or property by the seller to the buyer for an agreed value in money or other compensation. It is a legally binding contract that establishes the respective rights and responsibilities of the merchant and consumer.

Whether you are dealing with goods, equipments, personal property, real estate, or cars, or whether you are engaging in wholesale or retail, specific sales agreement should be entered so that transactions become systematic and that the parties achieve their goal in an economic way.

The bearings of Sales covenant can be outlined under the following directions:

  • It provides practicality and convenience to the parties as well as its transactions expedited.
  • Sales agreement is a device in avoiding fraud.
  • It binds the parties to their specific undertakings and offer sufficient notice to third persons that intrusion is not allowed.
  • Make transactions between seller and buyer straightforward.
  • It contained detailed description of the goods or services for sale as well as the prestation or obligation of both parties to the contract, to avoid parties from unilaterally renouncing their specific undertakings.
  • It secures both parties against nonperformance or non-abidance of the terms of the contract. The party at fault may be held liable for damages.
  • Sales agreement ensures smooth transition of the transactions.
  • Evidenced the completion of a commercial activity, that is, the deal is closed.

With all these inputs, one important consideration that relates to both parties is the need for legal assistance of a lawyer.

On the part of the seller, it is wise that lawyer be waged in drafting the sales agreement so that all the constitutive elements of the contract are considered including its legal elements.

On the buyer’ part, it is advisable to have a lawyer review the document before signing so that legal rights are learned and protected.

No Liability for Retaliation

Federal and state laws protect employees from any form of retaliation from their employers after reporting an alleged wrongdoing such as harassment or discrimination. The protection clause remains in effect even after the case has been dismissed or was proven to have no merit whatsoever.

I think that every employee has the right to report their superiors who are abusing their authority. Employers do not have the right to discriminate their employees because of disability, age, race, sex, or color. They should not be judged based on these aspects but on their job performance. Federal and state laws provide sanctions to employers who will discriminate or terminate their employees.

In my opinion, it would be unfair to dismiss an employee who is doing a good job in the first place just because they are black, disabled, or a woman. Every employee should be given a chance to prove themselves worthy of their positions. So unless the employee is really doing a terrible job, employers cannot use their authority to fire an employee without due process. This means that the employer should give the employees a chance to defend themselves.

If there is valid ground and the employee is not doing what is expected of him, then they can recommend the removal of the employee. But beyond that, they should be given a chance to freely exercise their right to work even though they are handicapped.

Employers should provide their employees an avenue for airing their grievances. Otherwise, it could be another valid reason for employees to report their employer.

Thursday, April 17, 2008

Why Incorporating Out of State Is Not Recommended

Setting up a corporation and being your own boss are only some of the rewards of having a business of your own. Aside from that, there is the practical reason of being financially independent while trying to cultivate your own skills in resourcefulness and being responsible.

In the article, “How to Incorporate and Start your Own California Corporation”, posted on March 23, 2007, the issues on how to start a corporation were sufficiently discussed.

The article enumerates the varied reasons and benefits one can derive from incorporating a business. In California, particularly, some of the common benefits of corporation establishment may include the following:

  • It protects your personal assets by having a separation of ownership
  • There could tax advantages available to you
  • It costs less to start a corporation in California ($100)
  • You can easily and professionally raise money through friends and family
  • For non-Californians, the annual franchise tax ($800) is waived for the first year

We all know what incorporation can do to a business, especially for starters and small businesses. However, incorporating a business outside of one’s state can do more harm than good.

Why is that so?

Not only is it impractical, but also incorporating out of one’s resident state can result in more taxes. And unless you are making out a profit of more than $100,000 a year, incorporating out of state will entail a great deal of expenses. For a starting business, this is not so good.

Added to this, you will have to pay for the franchise tax so that you can take your earnings back to your home state and save it there.

Nevertheless, establishing a corporation is a smart thing to do. Because lawsuits are always possible in business, the decision to incorporate is one’s guarantee of protection from it. Perhaps the best thing incorporation can do is protect your personal assets from legal threat so that no matter what happens to your business, your properties will remain secure. It can also help you find remedies in contract disputes and shield you from employee’s mistakes.

Wednesday, April 16, 2008

Dealing With SSA Overpayment Claims

One of the worst experiences that a claimant for social security disability can have is receiving a notice of overpayment. Usually claimants have the tendency to ignore them without realizing that such notice may eventually lead to the blocking of their checks.

SSA overpayment claims takes place when there is an error in the computation of benefits. The claimant may already be receiving disability compensation but then pursues a job to compensate their income.

If you think that the overpayment is not entirely your fault, contesting the notice is possible by asking for reconsideration. The necessary form for filing such request is available at an SSA office near your locality.

Another way of contesting the overpayment is by completing another form called “Request for Waiver of Overpayment.” With this document, you can explain why such overpayment is your responsibility and why repaying it is unfair and will cause difficulty on your part.

If your request for waiver has been denied by the Social Security Administration, you can appeal your case. At this point, assistance of a competent lawyer would be needed. During the appeal, there might be a need to attend hearings and testify in front of an Administrative Law Judge.

If your appeal does not work out and the overpayment issue has not been resolved, the SSA would work out payment schemes with you. They would involve minimal amounts of money.

In all of these, getting legal representation can lead to a successful claim. They have the training to handle these cases and they know what to do.

How Much Should an Employment Severance Package Be?

For all we know, severance packages are something like an incentive given by employers to their dismissed workers or employees. It is like a token or a send-off gift for a worker so that he can start anew.

But in all aspects, the awarding of an employment severance package is more a prerogative of an employer than it is a worker’s legal right. This means an employer may decide not to give a severance package if he deems it unnecessary. In the first place, a severance package is a privilege not a right.

Anyway, in the spirit of goodwill, an employer often gives a severance package to a fired worker to soften the blows of dismissal.

But in the article, “Whoever Designed Ray Mozilo’s Severance Package Must be Ashamed”, posted on January 12, 2008, the severance package received by a dismissed executive almost amounted to three times his base salary, which totaled about $ 110 million.

According to the article, which is based on a Los Angeles Times report, the amount of the severance package is “too much” considering that the executive has done nothing exemplary during his stint with the company.

This brings us to the question: how much should a dismissed employee actually receive for a severance package?

It depends. Because employment severance packages are mostly decided on by employers, probably the amount may vary depending on certain factors.

In considering how much to give to an employee who just got fired, one has to know first the circumstances behind the dismissal. An employer must first determine the causes of one’s dismissal.

More often, these causes are contained in the warning and termination letters sent to a worker prior to his dismissal. A typical severance package may also contain the following information:

  • A notice of termination stating the reasons
  • The terms of settlement in the severance package
  • The benefits offered by the company

Overall, if you are an employer it pays to have a good severance package ready in case you need one. Having a lawyer to assist you in drafting a severance package may ultimately help you in the end.

Thursday, April 10, 2008

Human Behavior as Factor in Animal Attacks

To say the least, not all animal attack cases are caused by behavioral problems, especially in dogs. In some instances, a provocation often precedes aggression – which means that dogs do not normally attack unless you give him a reason to do so.

There are certain human behaviors that can trigger an animal attack. Here are some situations:

  • Taking away food or water from a dog, or moving towards a dog’s food. This action is often interpreted by a dog as an act of aggression, which are often overlooked by dog owners.
  • Accidentally harming a dog, like stepping on its tail or paws
  • Attacking a dog or its companions (which could be other dogs or their owners), and acting in a manner that the dog perceives as an attack
  • Like humans, startling and disturbing a resting or sleeping dog can provoke an attack
  • Approaching or touching a sick or injured dog. Older dogs, like people, have the tendency to become "cranky" or sensitive and develop a tendency to become "snappish".
  • Approaching dogs already fighting
  • Threatening a puppy in the presence of an adult dog, especially its mother
  • In dog communication, staring at a dog directly in the eyes is an act of dominance or aggression, which is more dangerous when on the same visual level as the dog (such as small children), or when the human is unfamiliar to the dog.
  • Running away from a dog do not prevent it from attacking as the catch and chase instinct are normal to them. Besides, most dogs can outrun and overtake the average human, hence running away from an animal attack is more dangerous.
  • The natural instinct to jerk one's hands upwards away from an inquisitive dog often sends the dog a strong impulse to grab and hold, resulting in the dog jumping on the person and thrusting its head towards the raised hands.
  • Ignoring "Beware of Dog" signs: trained attack dogs, unlike most dogs, may attack an intruder without warning.
  • Entering a dog's "territory" such as a portion of a neighbor's backyard or one’s porch may also cause an attack

Nevertheless, with proper care and training, a dog’s behavior may be held in check. For signs of aggressive behavior, a pet owner may consult with a professional animal trainer to determine its causes and take corrective actions before it is too late.

Friday, April 4, 2008

Injury Claims and the Alarming Rise in Animal Attacks

There has been a marked increase in the number of animal attacks incidents in southern California. Recent newspaper reports indicated an upsurge in serious injuries cases which often involve pet dogs and young children.

The article, “Two Southern California Dog Bite Attacks Reported This Week”, posted on February 2, 2008, described two incidents of animal attacks in Fontana and Westminster. According to the article, in one incident, a young boy and his brother were chased and injured by a dog which was allegedly set off by its teenage owner. In another incident, another boy was attacked by a pit bull and was only rescued from further injury by a passing mailman.

Incidents like these may be common but as they occur in increasing regularity one cannot help but ask: can anything be done about it?

Local authorities in places where dog attacks are prevalent have certainly adopted measures to curb these incidents. At any rate, there are existing laws which protect animal attack victims and penalize negligent owners of dogs and other pets, especially animals with records of aggressiveness and violent behavior.

If you have been involved in an incident like this, the best you can do is to file an animal attack injury claim against the animal owner. In this way, you can get compensation for your injuries, in case you are harmed, and also prevent similar incidents from occurring.

In making a claim for this type of injury, proper documentation is necessary. Medical records, investigation reports regarding the incident, and the expert opinion of professional animal trainers to evaluate the behavior of the attacking animal are only some of the vital elements of a claim.

Like most personal injury damages, animal attack injury claims are governed by the torts law. In California, for example, these claims are pursued by establishing and proving who is at fault or negligent in the case, who can be held liable for their breach of duty, and what are the damages involved.

However, to make an effective claim for damages, you need to get the services of a legal expert, one who has extensive experience in the field. A lawyer who has the skills and experience in handling cases of similar nature can greatly improve your chances of success in obtaining your claim.