by Chris Erb on June 23, 2010
Viacom’s lawsuit against YouTube for copyright infringement was dismissed today, affirming the already strong protections offered to ISPs under the Digital Millennium Copyright Act (DMCA). The DMCA’s so-called “safe harbor” offers internet service providers protection from liability for copyright infringement in exchange for a fast and simple “notice and takedown” procedure. There are limitations on that protection, including that the ISP not have “actual knowledge” of infringement. The court confirmed that “actual knowledge” means knowledge of a specific instance of copyright infringement, not just a general knowledge that users periodically post infringing content.
Of course, if users were only posting infringing content, the court may not have been quite so quick to dismiss. Just ask LimeWire.
by Garrett Spangler on June 22, 2010
Estate planning seeks to ensure that your decisions are carried out after you are gone. When we think about estate planning however, it’s most common to focus on the individual. While this may be for good reason because we first want to take care of ourselves and our families, it is important not to overlook the planning that is necessary to smooth the transition of the small businesses interests you may own.
Business succession planning is the term given to estate planning for companies. To put a plan into place for your business you will need to draft a buy-sell agreement between the partners. Often, the company or its partners will purchase life insurance in conjunction with such an agreement to help cover the costs associated with a buyout. While it can take on various forms and will include specific provisions for your unique business and familial situation, there are two common techniques that are used to help both the business and the leaving partner’s family make the transition when an owner leaves the business.
When a partner is departing the business due to death, disability, or retirement, one option is to allow the other business owners to buy out the exiting shareholder’s interest. A second option is to allow the organization itself to buy back the interest of the shareholder who is leaving. Both options keep the ownership and control of the business concentrated in the existing partners. They also help the individual exiting the business, or the family who may have suffered a loss, get a fair price for their business interest in a short amount of time.
If you own a business and have not thought about potential exit strategies, you should talk to your business or estate planning professional about options for making any transition with your business a smooth one. A little planning can save enormous amounts of time, money, and aggravation when the time comes to move on.
by Chris Erb on June 18, 2010
Names and slogans for products, companies and services are typically protected by trademark law, and trademark rights can come into being by mere use, without any registration required. These so-called common-law trademarks are better than no protection at all, but they are no substitute for a registered trademark. Among other things, the date of first use for a common-law trademark can be difficult to prove, and such trademarks are often limited in geographic area.
Indeed, as a recent UDRP decision demonstrates, failure to register a mark (or clearly document common-law trademark rights) can prevent companies from obtaining rights in domain names which are critical to their business. In the above case, Umpqua Investments Inc. could not show that its rights to the domain name strandatkinson.com were superior to those of an alleged cybersquatter, even though the squatter failed to respond to the UDRP action.
For an online company, where a single domain name can be focal point for the entire business, that could be a devastating loss. If you haven’t already, consider registering trademarks for names or slogans which are critical to your business.
Hat tip: internetcases.com
by Erica Intzekostas on June 17, 2010
Under the COBRA rules, employers with 20 or more employees must offer their employees continuing participation in their group healthcare plan. However, the law provides an exception for when an employee is fired for gross misconduct.
In a recent case in Kansas, an employee was fired for “mooning” another employee (that is, exposing her rear end, for those of you who don’t remember the school dance scene from Grease). Being that she was not a stripper working at a gentlemen’s club, but rather a nurse working for a healthcare provider, her employer deemed that exposing her rear end to another employee in a patient care area was a violation of workplace policy and she was fired.
But when her employer tried to deny her COBRA coverage under the gross misconduct exception, she pursued a claim … and won. The case made it all the way to the District Court of Kansas, which upheld the Department of Labor’s decision that her actions did not constitute gross misconduct.
by Garrett Spangler on June 8, 2010
At the beginning of the year, Dennis Hopper was given just weeks to live and the first thing he did upon hearing the news…….file for divorce from his wife. (His 5th wife for those keeping count.) While Dennis managed to live well beyond the few weeks that his doctor’s gave him back in January, he was unable to see the divorce through before he passed away last week.
So where does that leave his wife and other heirs? “Battle Royale” might be my first guess.
Under the couple’s prenuptial agreement, his wife Victoria is slated to get 25% of Dennis’ estate, plus the proceeds of a life insurance policy. The other heirs of Dennis may want to lawyer up however, because according to TMZ she is only entitled to her share under the prenup if the couple was “married and living together” at the time that Dennis died.
While ultimately up to the judge overseeing the estate administration, making a case against the current wife may just work. Victoria was reportedly living in a guest house on Dennis’ property, but not in the family home, and it is public knowledge that he was in the middle of trying to get a divorce when he died. The trouble for the other heirs is that Victoria’s lawyer’s no doubt instructed her to drag her feet every step of the way so she could hang on until Dennis passed away. She did just that and now it appears she can make a viable claim that in fact they were still technically married and living on the same property together.
Now we’ll just have to wait and see if “separated and living within shouting distance” is close enough to “married and living together” for the trier of fact.
by Garrett Spangler on June 3, 2010
Is your Advanced Health Care Directive up to date?
According to the divorce attorney who allegedly handled the couple’s divorce in August 2008, Gary Coleman and Shannon Price were no longer married at the time of Coleman’s death last friday. That leaves some question as to whether Price had proper authority to make medical related decisions on the behalf of the late actor.
It appears that with the permission of Price, the Utah medical center where Coleman was treated released a copy of an Advanced Health Care Directive which the couple had prepared before their split. It provided Price with permission to make medical decisions on Coleman’s behalf and did not indicate any restrictions following a divorce.
The details are still working themselves out but it appears that the hospital followed proper procedure and allowed Price, Coleman’s identified agent, to request that life support be removed. While it seems odd to me that authority would not lapse once a divorce is final, some people close to the couple suggest that they were still very much involved in each others lives and would not be surprised if the couple had intended to permit each other to continue to make these types of decisions.
So what can you learn from Gary Coleman? Make sure that your documents are up to date and say what you want them to say. You may be happy to have a former spouse make health related decisions on your behalf but many might be afraid to give them such power. It’s ultimately up to you to plan for your own best interest.
by Garrett Spangler on May 27, 2010
Senators negotiating a potential new estate tax bill that would take effect next year appears to be falling apart. According to the BNA Daily Tax Report, Senate Finance Committee Chairman Max Baucus (D-Mont.) told media members, “There is no agreement on the estate tax in either substance or process. None whatsoever.”
This news follows reports that were disseminated through various sources that a new tax bill was on the table, being discussed, and potentially close to being brought to a vote. The deal allegedly included a top tax rate of 35 percent with a $5 million exemption per individual. The values are no surprise as they are the same that various lobbyists indicated could be amenable to party members on both sides of the isle. The trouble is, current budgetary woes would be amplified by such a move, reducing federal tax revenues over the next ten years by well over $300 billion dollars.
Currently the estate tax is repealed for 2010 and will reset January 1, 2011 with a 55 percent top tax rate and $1 million exemption. (Comparatively, 2009 included a 45% rate and $3.5 million exemption.) While some key congressional members have indicated that they agree some changes would be positive, they insist that it is very difficult to move as far out as lobbyists would like with the present economic turmoil, new healthcare bill, inevitable wall street oversight bill, and the current deficit. Senator Bob Casey (D-PA) stated, “The idea that we’re going to give an incredible economic advantage to less than 1 percent of the population is really offensive to me, to understate it dramatically.”
We’ll see what happens as we move closer to January of next year. In the mean time, if you hold assets whose gross value is near or in excess of $1 million, better call your estate planner to see what types of precautions you can take to help protect your assets.
by Garrett Spangler on May 21, 2010
Living, or inter-vivos trusts, are a commonly used instrument in estate planning and many financial experts tout their benefits. While they do help people accomplish some goals, my experience has taught me that many people seem to be overselling these tools with promises far from the truth. So when is a living trust the right choice for you and your family?
If you have significant wealth that will be subject to estate tax, live in a state where probate can be a very expensive and time consuming process (my home state of Pennsylvania is not one of them however), or you wish to avoid public scrutiny due to your profile in your community, it may be a very good idea to look into the possibility of developing a living trust.
Conversely, it is important to understand that a living trust does nothing to reduce the need for a Will, protect assets from creditors, prevent challenges from disgruntled heirs, ease the qualifications for Medicaid, or the necessity to pay income, estate or inheritance taxes. It simply provides an additional layer of privacy and oversight when properly drafted.
If you think a living trust is a good option for you there are various places where you can obtain one. Internet sites and software packages will be happy to sell you so-called “trust packages” which you could try, but your best option is an estate planning attorney in your area. They know the state law, will be able to draft a legally binding instrument, and stand behind their work so you can rest assured that your document will perform properly.
by Garrett Spangler on May 12, 2010
When drafting a Will, part of what should be included is an identification as to who should act as the executor of the estate. While most people understand this means wrapping up the affairs of the deceased, it seems that many do not have a firm understanding of what is actually expected and required of an individual in that role. Below is a brief outline of the responsibilities involved:
1) Generally, an executor has complete control over all the assets of the estate. The executor is required to protect, manage, and preserve the assets until all loose ends of the estate are tied up and assets can be distributed to their rightful beneficiaries.
2) The executor is required to maintain the liquidity of the estate. This may include obtaining loans or selling certain estate assets to ensure there is enough cash to maintain the estate, pay creditors, meet administrative expenses and pay any tax.
3) While the two items above are the general guiding principals for an executor, the actual administration of the estate begins by obtaining letters testamentary (or letters of administration if there was no Will). These court issued documents give you the legal right to manage the estate.
4) The executor must notify all potentially interested parties, including beneficiaries and creditors, about the death. They must then identify, inventory, and value all of the estate assets, preparing them for distribution.
5) Finally, all claims, payments and expenses must be satisfied, including any tax liability belonging to the decedent. Once those are complete, the estate can begin distribution of the assets to the beneficiaries, so long as the accounting of estate assets has been approved by the court or all beneficiaries.
While the duties of an executor are not necessarily easy, following these few simple rules, or contacting a knowledgeable attorney for assistance, should make the process reasonably painless. For more information on the process in Pennsylvania, check out: http://evans-legal.com/dan/easched.html.
by Garrett Spangler on May 7, 2010
When putting together an estate plan, many people overlook the importance of a living will. Many of you may remember a high profile case which became a national news story in 2005 involving the husband and parents of Terry Schiavo, arguing over whether she would have wished to continue with artificial life-prolonging measures in spite of confirmation from multiple physicians that she was in a persistent vegetative state without hope for recovery.
Despite the efforts of her parents, the pro-life movement and disability rights groups that wished to keep Terri alive at all costs, a Florida court decision was upheld to respect the wishes of Terri’s husband who petitioned to have her feeding tube removed, in support of what he claimed would have been Terri’s wishes. Terri collapsed in 1990, her husband petitioned the Florida Court in 1998 and litigation drug out through 2005 when the US Supreme Court denied certiorari, allowing the lower court decision to stand and her feeding tube to be removed. All of this drama could have been avoided with a simple living will outlining her wishes in the event that such a situation arose.
Not everyone will find themselves in the same predicament as Terri Schiavo in their lives, but why take a chance. Sometimes collectively referred to as a medical directive, a living will combines with a healthcare power of attorney to allow your agent to direct your physicians to administer only the extraordinary measures you want to have taken in the event that two physicians have confirmed that you have no hope of recovery. Like most estate planning, you need to get these documents in place before something happens but they can be a tremendous help to everyone involved by avoiding inter-familial disagreements and providing peace of mind that your specific wishes will be carried out.
In my experience, most people have strong feelings about how they would like to be treated if they were faced with a no-recovery situation. Be sure to get those feelings recorded in a legal document, your living will, to avoid the questions and litigation that could otherwise occur.
