When it comes to buying a used car in Florida, the old phrase "Buyer Beware" is especially applicable. Florida DOES NOT have a "Lemon Law" for used cars, so be especially careful when selecting a pre-owned vehicle.
ALWAYS ask if there is any warranty or guarantee period during which you can return the vehicle for service. See if there is an additional add-on warranty you can add to the vehicle. See if the dealer will allow you to have the car inspected by a trusted mechanic, whether on-site or off-site.
If the bill of sale or window sticker says "AS IS", the dealer is attempting to disclaim all warranties and you will probably not be able to return the vehicle for a refund or demand repairs from the dealer if something breaks as you drive the car off of the lot.
There is an old saying: "You get what you pay for." Sometimes that "great deal" for an As-Is used car is "too good to be true"!
Tuesday, March 4, 2014
Wednesday, February 12, 2014
Evidence of Juggalo Tendencies Allowed in Murder Trial
Juggalos have had it tough recently. For those of you who are unaware, Juggalos are the fans of a rap group called the Insane Clown Posse (ICP). ICP's lyrics allegedly have incited violent attacks against victims. Juggalos claim that the acts of a few crazed people should not be imputed to all of them.
The government already has labeled the Juggalos as a "gang" subject to increased surveillance under the National Gang Threat Assessment. Now, it appears as though courts might treat the group differently as well.
This case involves a Tennessee man and self-professed Juggalo who was convicted of using a hatchet to murder a middle-aged woman who was hosting him in her home in 2007. On appeal, he is claiming that testimony from police explaining the alleged violent propensities of Juggalos was irrelevant and unfairly prejudicial. The State argues that the evidence was directly relevant to the motive for the killing, which was described as completing a challenge posed by the lyrics of the song which would result in achieving a spiritual goal desired by devout Juggalos.
The appeals court held that the conviction would stand irrespective of the testimony. The defendant may still appeal to the state supreme court or seek post-conviction relief.
The government already has labeled the Juggalos as a "gang" subject to increased surveillance under the National Gang Threat Assessment. Now, it appears as though courts might treat the group differently as well.
This case involves a Tennessee man and self-professed Juggalo who was convicted of using a hatchet to murder a middle-aged woman who was hosting him in her home in 2007. On appeal, he is claiming that testimony from police explaining the alleged violent propensities of Juggalos was irrelevant and unfairly prejudicial. The State argues that the evidence was directly relevant to the motive for the killing, which was described as completing a challenge posed by the lyrics of the song which would result in achieving a spiritual goal desired by devout Juggalos.
The appeals court held that the conviction would stand irrespective of the testimony. The defendant may still appeal to the state supreme court or seek post-conviction relief.
Tuesday, February 11, 2014
Minor League Baseball Class Action Filed
Spring Training is usually a happy time for baseball players as hope springs eternal for success in the upcoming season. But the life of a minor leaguer can be tough, as evidenced by this class action filed by three minor leaguers challenging the pay structure and lack of negotiations for their contracts.
As background, each major league ballclub is affiliated with several minor league clubs of varying skill levels. Major league teams acquire players either through the Amateur Draft or sign players as "free agents" without a draft process. Upon signing, the player receives a modest signing bonus and is paid their salary. Minor league salaries are nothing like the salaries for major league ballplayers and can be as low as a few thousand dollars for the entire season.
Major League Baseball implemented the Uniform Player Contract (UPC) in 2012 as part of the new collective bargaining agreement with the players' union. Under the system, the major league team has exclusive rights to the player for seven years, the team can transfer the player to other teams at will, and the player may be terminated without cause. Players, in contrast, have no freedom to sign with other teams or transfer their contract. The UPC requires salaries to be paid only during the playoffs, meaning that teams could choose not to pay regular salaries and instead pay a single lump sum during the playoffs.
Minor league players have not unionized like their major league counterparts. Additionally, like most major sports, Major League Baseball enjoys a unique antitrust exemption reinforced by Supreme Court decisions, so there is no competing league (and probably never will be absent a contrary court decision) for the players to reap the benefits of competition.
The UPC explicitly allows minor leaguers to negotiate their contract, but in reality these negotiations are allegedly sham negotiations according to the class action. The class action seeks wage increases based on the value of professional services rendered (quantum meruit) and compliance with state and federal wage & hour laws (which would require regular salary payments).
As background, each major league ballclub is affiliated with several minor league clubs of varying skill levels. Major league teams acquire players either through the Amateur Draft or sign players as "free agents" without a draft process. Upon signing, the player receives a modest signing bonus and is paid their salary. Minor league salaries are nothing like the salaries for major league ballplayers and can be as low as a few thousand dollars for the entire season.
Major League Baseball implemented the Uniform Player Contract (UPC) in 2012 as part of the new collective bargaining agreement with the players' union. Under the system, the major league team has exclusive rights to the player for seven years, the team can transfer the player to other teams at will, and the player may be terminated without cause. Players, in contrast, have no freedom to sign with other teams or transfer their contract. The UPC requires salaries to be paid only during the playoffs, meaning that teams could choose not to pay regular salaries and instead pay a single lump sum during the playoffs.
Minor league players have not unionized like their major league counterparts. Additionally, like most major sports, Major League Baseball enjoys a unique antitrust exemption reinforced by Supreme Court decisions, so there is no competing league (and probably never will be absent a contrary court decision) for the players to reap the benefits of competition.
The UPC explicitly allows minor leaguers to negotiate their contract, but in reality these negotiations are allegedly sham negotiations according to the class action. The class action seeks wage increases based on the value of professional services rendered (quantum meruit) and compliance with state and federal wage & hour laws (which would require regular salary payments).
Thursday, February 6, 2014
Racism is Alive & Well - How Respondeat Superior Might Lead to Trouble for Your Business!
People who have blessedly not been exposed to racism in some time might think the problem ended years ago, but cases like this remind all of us that racism and hate remain daily problems for some Americans.
This case has all of the tell-tale signs of a racism case from the 1960's: derogatory name-calling, physical threats and intimidation, assault and battery, threats to the victim at his home not to fight the attackers in court, et al.
While that is enough in and of itself to comment on, I must also note the response of management and his supervisor. The immediate supervisor thought that an apology was the right way to discipline a knife attack? Management everywhere should shudder at the thought.
Remember that under the doctrine of respondeat superior, employers can be liable for the torts of their employees committed within the scope of their employment. Be careful who you put in management! The wrong leader can lead to punitive damages and bad publicity that every company should seek to avoid.
This case has all of the tell-tale signs of a racism case from the 1960's: derogatory name-calling, physical threats and intimidation, assault and battery, threats to the victim at his home not to fight the attackers in court, et al.
While that is enough in and of itself to comment on, I must also note the response of management and his supervisor. The immediate supervisor thought that an apology was the right way to discipline a knife attack? Management everywhere should shudder at the thought.
Remember that under the doctrine of respondeat superior, employers can be liable for the torts of their employees committed within the scope of their employment. Be careful who you put in management! The wrong leader can lead to punitive damages and bad publicity that every company should seek to avoid.
Monday, February 3, 2014
How Do Sweepstakes Payouts Work?
You might know that sweepstakes prizes worth millions of dollars are actually paid by insurance companies, not the company that is promoting it. But you might not know why insurance companies would agree to such huge potential payoffs - policy premiums!
Insurance companies receive policy premiums from the company in exchange for taking on the risk of a huge payoff. A recent example is an alleged agreement between Yahoo! & an insurance company to pay $1 billion to anyone who submits a perfect NCAA March Madness bracket through the Yahoo! Sports website.
The insurance company alleges that Yahoo! breached by cancelling the agreement after paying only one installment of the policy premiums. If the insurance company's allegations are true, in order to cancel the agreement Yahoo! has to pay 1/2 of the agreed-upon policy premiums. Yahoo! claims that the contract allows them to cancel at any time without paying any additional premiums.
A basic tenet of contract law is that a contract is formed upon the congruence of all of the required elements of a contract: offer, acceptance, and consideration. Even if the "triggering event" (in this case the results of the basketball tournament) occurs in the future, an enforceable contract results when all three parts exist together.
This case will come down to the language of the contract itself, but I find more value in the example of a difference between a contract with duties that result upon the happening of a subsequent event (this one) and a contract with a condition precedent (I agree to pay you $10.00 if and only if the Atlanta Braves win the 2014 World Series). Contracts with conditions precedent are not breached until the triggering event occurs. The alleged contract in this case was allegedly breached by the unilateral termination by Yahoo! (I agree to pay policy premiums to you in exchange for your promise to cover me if someone submits a perfect NCAA bracket).
In order to profit from these agreements, insurance companies almost always phrase the agreement to form an enforceable agreement immediately without conditions precedent.
The distinction is a fine one; make sure to have an attorney draft contracts on your behalf.
Insurance companies receive policy premiums from the company in exchange for taking on the risk of a huge payoff. A recent example is an alleged agreement between Yahoo! & an insurance company to pay $1 billion to anyone who submits a perfect NCAA March Madness bracket through the Yahoo! Sports website.
The insurance company alleges that Yahoo! breached by cancelling the agreement after paying only one installment of the policy premiums. If the insurance company's allegations are true, in order to cancel the agreement Yahoo! has to pay 1/2 of the agreed-upon policy premiums. Yahoo! claims that the contract allows them to cancel at any time without paying any additional premiums.
A basic tenet of contract law is that a contract is formed upon the congruence of all of the required elements of a contract: offer, acceptance, and consideration. Even if the "triggering event" (in this case the results of the basketball tournament) occurs in the future, an enforceable contract results when all three parts exist together.
This case will come down to the language of the contract itself, but I find more value in the example of a difference between a contract with duties that result upon the happening of a subsequent event (this one) and a contract with a condition precedent (I agree to pay you $10.00 if and only if the Atlanta Braves win the 2014 World Series). Contracts with conditions precedent are not breached until the triggering event occurs. The alleged contract in this case was allegedly breached by the unilateral termination by Yahoo! (I agree to pay policy premiums to you in exchange for your promise to cover me if someone submits a perfect NCAA bracket).
In order to profit from these agreements, insurance companies almost always phrase the agreement to form an enforceable agreement immediately without conditions precedent.
The distinction is a fine one; make sure to have an attorney draft contracts on your behalf.
Wednesday, January 22, 2014
Chemical Carcinogen = Earthworm? Only in Property Law!
When is a carcinogenic chemical equal to earthworms? When property law is involved, of course!
Put aside for a moment the fact that there are federal Clean Water Act and Resource Conservation and Recovery Act (RCRA) claims possible here. The case here seeks damages for homeowners whose property values dropped. Homeowners argue that the property value drop is tied to publicity surrounding benzene pollution by Shell Oil. Shell Oil argues that the drop was caused by other forces, including the Great Recession.
The 7th Circuit Court of Appeals (IL and other Midwest states) substantively held that the benzene pollution is akin to other undesirable features common in the ground of everyone's homes like insects and worms. A key fact leading to this ruling is that the drinking water for the affected class comes from an unpolluted source not threatened by the benzene. Had the drinking water itself been polluted, the court opines that the connection might be strong enough to support damages.
Put aside for a moment the fact that there are federal Clean Water Act and Resource Conservation and Recovery Act (RCRA) claims possible here. The case here seeks damages for homeowners whose property values dropped. Homeowners argue that the property value drop is tied to publicity surrounding benzene pollution by Shell Oil. Shell Oil argues that the drop was caused by other forces, including the Great Recession.
The 7th Circuit Court of Appeals (IL and other Midwest states) substantively held that the benzene pollution is akin to other undesirable features common in the ground of everyone's homes like insects and worms. A key fact leading to this ruling is that the drinking water for the affected class comes from an unpolluted source not threatened by the benzene. Had the drinking water itself been polluted, the court opines that the connection might be strong enough to support damages.
Tuesday, January 21, 2014
BETAMAX Case Transported to the 21st Century in Aereo
The name BETAMAX conjures up memories of the 80's, but it should also make you think of Netflix, video rentals, your DVR or TiVo, and cloud storage. Without the BETAMAX case in the 1980's, no recording devices would have been allowed and viewers would have never have had the opportunity to enjoy time-shifting and watching programs on their own schedule. Now SCOTUS is considering a case that brings the argument into the 21st Century.
In the 1980's, Sony was sued by Universal and Disney to block production of BETAMAX recording devices. BETAMAX, for those of you under 30, was a rival technology to the VCR (which eventually became the standard) that allowed users to record shows broadcast on TV or cable or satellite so that users could watch them when they wanted.
Universal and Disney were arguing that copyright protections would be eroded forever and that Fair Use (sampling an 80's song for a new rap song, for example) would be expanded beyond recognition.
The Supreme Court (SCOTUS) ultimately held that people could record portions of a show or the entire show so long as their intent was to watch the program later. Second, people could even resell or rent recordings of programs to others for profit so long as the recording has a substantial, legitimate use (i.e. was aired on free broadcasting channels, not cable).
We are all used to the first holding, but the second holding might be new to you. Expect the second part to hit the news as SCOTUS is now considering the Aereo case, the first major case since BETAMAX to examine the boundaries of time-shifting programming.
Aereo has created technology that uses a system of small antennas in an urban area to take live programming offered over the air by local broadcasters and stream it to subscribers who pay Aereo a fee for the service. Aereo's target customers are those who have cancelled cable and satellite and who use Netflix, Hulu, iTunes, Apple TV, and the other myriad Internet-based programming solutions. With Aereo, a person could watch live sports (think the Big Game for the NFL or March Madness) without paying for cable or satellite.
Aereo argues that it is simply a super-charged "rabbit ears" (back in the dark ages, people used antennas to watch TV, kids). Broadcasters are arguing that their creative content (and copyrights) are being infringed upon. Broadcasters also want use fees from the transmissions like they receive from cable and satellite providers.
If Aereo's argument prevails, broadcasters like FOX & CBS have threatened to move to cable, so this case has far-reaching implications.
In the 1980's, Sony was sued by Universal and Disney to block production of BETAMAX recording devices. BETAMAX, for those of you under 30, was a rival technology to the VCR (which eventually became the standard) that allowed users to record shows broadcast on TV or cable or satellite so that users could watch them when they wanted.
Universal and Disney were arguing that copyright protections would be eroded forever and that Fair Use (sampling an 80's song for a new rap song, for example) would be expanded beyond recognition.
The Supreme Court (SCOTUS) ultimately held that people could record portions of a show or the entire show so long as their intent was to watch the program later. Second, people could even resell or rent recordings of programs to others for profit so long as the recording has a substantial, legitimate use (i.e. was aired on free broadcasting channels, not cable).
We are all used to the first holding, but the second holding might be new to you. Expect the second part to hit the news as SCOTUS is now considering the Aereo case, the first major case since BETAMAX to examine the boundaries of time-shifting programming.
Aereo has created technology that uses a system of small antennas in an urban area to take live programming offered over the air by local broadcasters and stream it to subscribers who pay Aereo a fee for the service. Aereo's target customers are those who have cancelled cable and satellite and who use Netflix, Hulu, iTunes, Apple TV, and the other myriad Internet-based programming solutions. With Aereo, a person could watch live sports (think the Big Game for the NFL or March Madness) without paying for cable or satellite.
Aereo argues that it is simply a super-charged "rabbit ears" (back in the dark ages, people used antennas to watch TV, kids). Broadcasters are arguing that their creative content (and copyrights) are being infringed upon. Broadcasters also want use fees from the transmissions like they receive from cable and satellite providers.
If Aereo's argument prevails, broadcasters like FOX & CBS have threatened to move to cable, so this case has far-reaching implications.
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