Rogers & Tartaro On Main Street : New York and Connecticut Business Litigation Lawyer & Attorney : Rogers & Tartaro Law Firm : Commercial Litigation : Westchester County NY, Fairfield County CT

As a private firm with a civil litigation practice in a mid-sized town, we receive inquiries from potential clients looking for information and wondering if they “have a case.” We are often surprised by the expectations of many of these individuals, including the assumption that a retainer or initial consulting fee will not be charged. 

An attorney’s inventory consists of his/her time, expertise and judgment. An evaluation of a case draws on all three, and fair compensation is appropriate. Consulting and retaining an attorney requires a substantial emotional and financial commitment. 

Since a litigation practice inherently involves helping clients to resolve disputes or controversies, the stress level is always high, even before the first introduction. We found that the following suggestions can help both potential clients and attorneys (no matter what the size of the firm) navigate through the beginning of the process. 

Communication is key. An important element to a successful outcome is the attorney - client relationship and the sharing of knowledge. Be sure you are comfortable with one another. Both parties should be reasonably available.

Be realistic. Both client and attorney need to be sensible about whether a case is viable. Many potential litigants mistakenly believe that hiring a lawyer will easily resolve their problems. Clients should also understand the potential extent of time (and inherent costs) for litigation.

Be wary. Litigation is inherently risky. Any attorney who guarantees a particular result should be avoided. 

Agreements should be formal. The attorney’s terms of representations should be in writing and explained to a client’s understanding and satisfaction. Be honest and make sure each party knows what is expected of the other.

Fee arrangements should be written out in detail and signed by both parties. 

Clients have work to do, too. Clients are responsible for gathering relevant materials in a timely manner.

Experience counts. Make sure that the firm or attorney you are considering is experienced in the area in which you are dealing. 

Be open to a fair settlement. The goal should be a satisfactory, reasonably economical resolution of the dispute. “Go for broke” --  and you just might get there.

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Signs of the recession are apparent in downtown Ridgefield. There are vacant storefronts downtown when, a year ago, there were none. The vacant storefronts evidence the fact that, indeed, Ridgefield is not immune to feeling the pinch of the economic downturn in our state and country.

As a community, however, we don’t see the evidence that many of our neighbors struggle to feed their families. The Ridgefield Food Pantry, located in Town Hall, reports that as the effects of the Great Recession linger, more and more Ridgefielders turn to the food pantry to supplement the food they can buy to place on their family table. Many Ridgefielders need the Food Pantry’s assistance now, whereas a few years ago, they were among the many people donating food to the Food Pantry.

Please consider making a donation of food or a supermarket gift card to the Ridgefield Food Pantry. A donation of $5.00 is not diminished by administrative fees; and, a jar of peanut butter will help fill a child’s hungry tummy. Even the smallest donation to the Food Pantry makes a huge difference in whether our neighbors go to bed hungry or are able to feed their families during this very difficult time.   

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This blog has featured several entries about controversial Facebook posts and the troubles they can cause employees, but it seems that saying something in 140 characters (or less) may be even more damaging. Careless Twittering has been in the news and cost several people their jobs or business ties as of late. For example:

• Insurance giant AFLAC fired comedian Gilbert Gottfried for tweeting about the devastation in Japan (Gottfried is the voice of the trademark Aflacduck). Gottfried, known for his offhand and often vulgar comedy, posted some insensitive tweets about the tsunami. AFLAC immediately broke their ties with the comedian.
• The New York Times reports that an employee of New Media Strategies, an agency handling the Twitter account for Chrysler brand, commented on his Twitter account that “I find it ironic that Detroit is known as the Motor City and yet no one here knows how to [expletive] drive.”
• Even law officials are not immune. Indiana Deputy Attorney General Jeff Cox was fired for remarks he made on Twitter, suggesting riot police in Wisconsin should use live ammunition when clearing protesters out of the Wisconsin Capitol building.
• Last year, CNN said it dismissed a senior correspondent who used her Twitter account to praise a Muslim cleric associated with the terror group Hezbollah (removing any sense of objectivity to her reporting).

We lean towards the point of view that one should not blame the tool when it has been misused (like a Little League shortstop throwing down and kicking his glove when he makes an error). Twitter (and similar social media tools) can be a very effective tool for marketing, building relationships and communications.  Social Media tools can also create serious issues for employees and their employers. The New York Times reports that George E. Belch, a marketing professor at San Diego State University, reminds employers that “there are people in your company who forget when they post on a blog, on Twitter, on a Facebook page, that it’s out there — and it’s out there at warp speed.” In other words, messages can go “viral” and cause havoc (as in the cases above).

As we’ve said before, it’s important to think carefully about online postings, especially if you’re being paid to represent an organization. And, don't forget: in many ways we all represent our organizations and we do so 24/7. We should all practice being responsible, and being prepared to be accountable for what we write.

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A First Look at the New "Temporary" Federal Estate Tax Law

Throughout 2010, several of our posts noted that the federal estate tax had expired but that under then-current law, the estate tax was due to come back in 2011 as a more onerous tax. We commented and provided links, for example, discussing the George Steinbrenner estate, some $600,000,000 that would not be subject to the federal estate tax because he died in 2010 instead of 2009 or 2011. Then, in the last days of 2010, a deal was cut between the President and Congress as part of a broader tax package. The estate tax came back but in a (relatively) more benign form.

At this point, we have been able to analyze at least some of the specifics of the new estate tax. It was an interesting compromise. First, the good news: estates worth up to $5,000,000 are excluded (are not taxed) and the highest bracket, at 35%, is significantly lower than the highest bracket of the old tax (45% in 2009 but once as high as 55%). More good news, the $5,000,000 exclusion amount is "portable" which means that a married couple can more easily shelter $10,000,000 from the tax (without the necessity of a special trust).

That "portability" provision is especially interesting. Congress was able to determine that you should be able to "port" only the unused portion of the exclusion of one spouse. You can't accumulate unused exclusions from serial marriages.

But, yes, there is some bad news. The new estate tax is also temporary and will expire in 2013. And, the new estate tax is retroactive - - in a way. Executors of decedents who died in 2010 may elect to have 2010's rules carried over to 2011. Why wouldn't all executors so elect? There is a complex interplay with the capital gains tax and the determination of the cost basis of assets. Some executors will have to perform a careful analysis before deciding how they want to proceed.

These changes apply only to the federal estate tax. States have their own estate tax laws. Connecticut taxes estates over $3.5 million. New York taxes estates over $1.0 million. In both cases, the tax rates are not anywhere near the federal rates but can apply to estates that are excluded from the federal estate tax.

The discussion above is somewhat simplified and we will return to each in future posts to explain these provisions in a little more detail. For now, here are some general takeaways:

• Most estates will not be taxed at all and the focus of most people's estate planning should be on what they want to accomplish with their assets, not on tax avoidance;
• The temporary nature of these provisions keeps the premium on flexibility for those estates that might be on the cusp of the taxable thresholds;
• As always, life insurance, 401(k) plans, jointly owned real estate and other "non-probate" assets can put an estate over the taxable threshold - - people tend to be unaware how "non-probate assets" can build up their taxable estate;
• It may be a good time to review your asset and your will with an estate planning attorney - - if you haven't done so in the last three to five years, it's probably overdue.
 

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You have the right to remain silent … about some things . . . when interviewing for a job. It's well known that some questions are off-limits because, for example, they could imply a discriminatory intent. But, do you have the right to keep your Facebook password and login info to yourself when you’re applying for a job? The ACLU says that you do, and they’re going after the Maryland Division of Corrections (MDOC) over the issue.

According to the ACLU, the Division of Corrections “has a blanket requirement that applicants for employment with the division, as well as current employees undergoing recertification, provide the government with their social media account usernames and personal passwords for use in employee background checks.”

An NBC report states that the MDOC simply wanted to make sure that their employees are not engaged in any illicit activities. The MDOC has issued their own statement, defending and explaining their actions: “DPSCS reserves the right to inquire about a possible candidate's Facebook account during the hiring or re-certification process. However, it does not require/demand it as stated in the ACLU release. A candidate's refusal is not grounds for disqualification.”

The motives of the ACLU and plaintiff are not our concern. Neither is MDOC’s claim that a candidate or current employee will not be prejudiced by failing to disclose his or her Facebook information. What we do find interesting is that once again, the issue of electronic privacy within the workplace has arisen, and the courts are being forced to examine how far employers can go, and what liability the employee has.

The latest news is that the MDOC policy has been pulled for the next 45 days as it goes under review. However, as we have said in these columns before, there should be no realistic expectation of privacy anywhere on the internet. Facebook, currently popular and with a high profile, tends to be in the middle of these controversies but the concern should not be limited to this one service.

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"Branding" is a hot buzzword these days.  Consultants try to teach organizations that are new at it  (like small law firms, such as ours, and small businesses in general) how to establish a "brand."  More experienced organizations understand the value of their established brands and will vigorously defend them with all the legal means available.  Two recent examples involve the State of Vermont and the Taco Bell fast food chain.

The State of Vermont recently directed its legal ire against hamburger giant McDonald’s for the use of the word “maple” in the name of their new breakfast offering, McDonald's Fruit and Maple Oatmeal.   According to Bloomberg news reports, Governor Peter Shumlin said the only actual maple ingredient in the product was extracted from the bark of a bush that is a distant relative of the maple tree.  The MacDonald's product allegedly did not comply with Vermont's maple laws, which are very specific in the way in which the word “maple” is allowed to be used:  Vermont is very protective of its " maple" brand. As  Kelly Loftus of the Vermont Agency of Agriculture said, "It is illegal to use the word 'maple' for a product unless the sweetener is 100 percent pure maple. Artificial maple flavoring should be clearly and conspicuously labeled on the principal panel with the term 'artificial flavor'."

McDonald’s reportedly has acquiesced.  Bloomberg reports  that as of February 1, Vermont customers (and only Vermont customers) can now request that maple syrup or sugar be added to the oatmeal.

Taco Bell has also had to defend a cherished brand.  This time, it's not the use of the brand that is at issue; rather, the issue involves the sullying of a valuable brand name.  An Alabama law firm has filed a class action lawsuit against Taco Bell.  The company is being sued for false advertising for referring to its "seasoned ground beef" in its products.   The law firm has alledged that only 35% of the product is beef; the rest is filler, including something called “anti-dusting agent.”  MSNBC states that the lawsuit does not seek monetary damages, only that Taco Bell stop claiming that what they are selling is beef.

A statement on the Taco Bell website responds: “Unfortunately, the lawyers in this case elected to sue first and ask questions later -- and got their ‘facts’ absolutely wrong. We plan to take legal action for the false statements being made about our food."  While they refer to defending their food, they are really defending their Taco Bell brand.

I find these "brand battles" to be interesting and compelling.  I also find the legal and business lessons of these larger, more experienced organizations (whether a state or business entity) to be highly relevant and timely for all of us.

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In addition to its small-town charm and sense of community spirit, Ridgefield is fortunate to have an abundance of excellent restaurants. 

Many of these wonderful eateries will offer some of their finest fare at The 12th Annual Taste of Ridgefield.  Held at the Ridgefield Community Center on Sunday, Jan. 30, the event will feature offerings from 30 restaurants and businesses in town.

The “Taste” raises funds for the Rotary Club of Ridgefield, which uses the money to support dozens of local charities.  My partner Angelo Tartaro and I are proud to be members of this worthwhile organization, which provides many admirable services for the Town.

The first serving is noon to 2:30 p.m., $35 advance, $40 door; second serving is 4 to 6:30 p.m., $40 advance, $45 door.

Whether you're a true "foodie," or someone who just enjoys a pleasant meal out, The Taste offers something for everyone, including a fun (and delicious) opportunity to support the community.  Please contact our office if you are interested in attending.

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I'd like to start the New Year off on a lighter note. Even for lawyers there is more to life than "The Law."

Bringing a dog into your home requires a true commitment of time, energy and patience. But, it's a true joy to dog lovers. And there’s something very special about the bond between a shelter pet and its owners.   

In addition to saving a life (many rescue or shelter animals are often scheduled to be euthanized), the pet you bring home often enriches yours. Our family dog has a special role for a disabled family member - - not quite a therapy dog, but close. It's fascinating to watch as genuine, lasting bonds are formed based on canine instincts and human patience.   

Bev and I have both had the pleasure – and challenges – of opening our homes more than once to rescued pets. My family and I recently added Maggie, a lab mix, to our family.

There’s been an interesting learning curve for all parties involved, with the rules and regulations for Maggie clearly laid out. There is a consensus ad idemof our unspoken contract; we assume Maggie knows she will have to accept the repercussions from any damages (for example, to the carpet or, in our case, to a remote laid carelessly on a table).      

Interested in learning more about pet rescue and adoption?  Visit petfinder.com

 Toby Rogers

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Do you remember that commercial that opens with a man saying, “I’m not a doctor, but I play one on TV”? It appears that now we could have that type of disclosure with online reviews.

The Federal Trade Commission recently passed regulations that state that advertisers “must disclose any material connection between a person endorsing a product and the company selling the product.” In other words, if you’re being paid to endorse or review something, you’ve got to make that clear from the outset.

This is a good general rule for those writing a blog, Facebook page or “tweeting” on behalf of a company. But it will be interesting to see how this can be enforced with online review sites such as Yelp, Chowhound and even iTunes. The New York Times reported that the FTC had settled charges with a California marketing company that had been alleged to engage in deceptive advertising by having its employees write and post positive reviews of clients’ games in the Apple iTunes Store, without disclosing that they were being paid to do so.

This can also work the other way, with negative reviews. With the loss of inhibition and sense of anonymity that people experience online, reviews may be vicious and can even be defamatory. Additionally, rival companies can post negative “anonymous” reviews about competitive businesses, a practice that’s unethical, but legal (at least superficially, but such reviews can also be defamatory ). Defamatory reviews or comments may not attract the attention of any governmental agencies but can involve significant liabilities through "self-enforcement" (civil lawsuits).

Employers and employees need to be aware of the disclosure rules and the potential costs to their reputation and the business' bottom line. Last year, the Times reports, the State of New York had reached a $300,000 settlement with Lifestyle Lift, a cosmetic surgery outfit, over faked reviews of its products on the Internet.

Whether you call it “astroturfing,” propaganda, or even if you think it's outright fraudulent, the practice falls into an ethical gray area and, in some cases, could ultimately be illegal.

p.s.   This Just In:  The Wall Street Journal Law Blog reports that a lawsuit involving singer Courtney Love will be tried in February and explores whether defamatory "tweets"  can give rise to liability. 

Stay tuned....

image courtesy reviewcrew.org

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