Author Archives: Brian Irion

Intellectual Property Overview

Intellectual Property Overview


In 1988, Ashton-Tate filed a lawsuit against Fox Software claiming that FoxBase unlawfully mimicked the look and feel of Ashton-Tate’s dBaseIII. In 1991, Phillip Morris took out a full-page ad in the Wall Street Journal that depicted the logos of its brands of cigarettes. Under the logos was a warning: “If you’re using any of these symbols in your business without our permission, we’ll see you in court.” In 1995, the United States Seventh Circuit Court of Appeals ruled that PepsiCo, Inc. could restrain a former executive officer from even working for Quaker Oats Company’s beverage division on the fear that the former employee might “inevitably disclose” PepsiCo’s trade secrets.

Intellectual Property Law is comprised of four separate subcategories:

Trade secrets, trademarks, copyrights and patents protect a company’s assets in different ways. The various types of intellectual property can work independently or interdependently. In some cases, using one method of protecting an asset compromises the ability to protect it by another.

Intellectual property lawsuits figure prominently in the strategies to restrain what companies believe is unfair competition from their competitors. It is a mistake for any business to fail to recognize and protect its intellectual property through proper documentation, filings with appropriate offices (such as the patent and trademark office), and best practices in company procedures and handbooks. It also is a mistake to be unprepared for intellectual property lawsuits from competitors. Even interviewing and hiring a competitor’s coveted employees can get a company sued.

Differences between Litigation, Arbitration and Mediation

Differences between Litigation, Arbitration and Mediation


Litigation

Litigation is broadly defined as “to carry on a legal contest by judicial process” (Webster’s Ninth New Collegiate Dictionary, p. 698 (Merriam Webster 1988.) The typical process under which disputes are resolved is through a lawsuit, and while every lawsuit will have its own special characteristics, most lawsuits have a similar general roadmap involving pleadings, discovery, pre-trial motions, settlement efforts, and trial.

If one side loses too severely at trial, the case may go on to appeal. Many trial lawyers define an appeal as “a process by which the opposing side tries to take away all that was earned at trial.” Think about this when you are dead set on having your day in court against the proverbial intransigent defendant or unreasonable plaintiff.

Similarly, a party that cannot pay a judgment might consider bankruptcy to frustrate the judgment creditor.

All this litigating usually costs a lot of money. Collection cases typically involve pre-judgment attachment or restraining orders; business disputes between former business partners or shareholders often seek an accounting by appointment of a special master, and real estate and personal injury cases almost always involve retention of experts to opine on the cause and amount of damages. I often advise clients who are considering litigation to try vigorously to settle the matter before suing, and try vigorously to make a fair settlement offer as soon as being sued.

Arbitration

Contractual arbitration is just like litigation, only it is done before a private fact finder who usually is an experienced attorney or retired judge who charges from $350 to $600 per hour to hear your case. The touted advantages are speed, confidentiality and finality. This is because some courts are clogged with criminal matters, which take priority over civil disputes (speed), because arbitrations are conducted not in “open court” but in conference rooms (confidentiality), and because there are very few grounds on which an arbitration award can be overturned (finality).

Detractors argue that many state and federal courts in California can bring a case to trial nearly as quickly under “fast track” laws, that an open court trial and the possibility of appeal creates a fairer hearing, and even many defendants would rather trust their chances to twelve jurors or a judge who must follow the law than an arbitrator who doesn’t have to.

While arbitration clauses used to be strongly favored, they have come under increasing scrutiny. For example, arbitration agreements between employers and employees have been strictly construed and invalidated in many cases where they are deemed to be unfair or in derogation of public rights (such as the right to resort to the DFEH or EEOC). Also, where arbitration of only part of a multi-party dispute will disrupt the remainder of the proceeding and does not involve interstate commerce, the California Arbitration Act allows a court to refuse to enforce it.

Mediation

Mediation is one tool in the arsenal of alternative dispute resolution (“ADR”) procedures utilized by courts and attorneys to try to get the parties to agree to resolve their differences without going all the way to trial. Mediation (similar to settlement conferences) is a non-binding conciliatory process in which the mediator hears all sides, discusses the pros and cons of each party’s case with that party (sometimes confidentially) and then tries to get each party to adopt a less strident stance in the hope that if each party gives a little, a resolution can be reached. Many attorneys will agree that if the parties reach a settlement no one is happy with, it is a good resolution. This is because the cost to go to trial often is higher and less predictable or enforceable even if one wins. Mediation is not, however, a process by which a party can be forced to agree to anything.

Other tools of ADR include non-binding judicial arbitration and early neutral evaluation in which the parties put on a “light” version of their evidence to an independent fact finder who may issue a non-binding award in favor of one or another party and the party who has had unrealistic expectations gets a proverbial “wake-up call” to be a little more reasonable in settlement discussions.

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About Credit Counseling Advertisers

About Credit Counseling Advertisers


The media bombards you with ads from debt counseling agencies telling you to consolidate or reduce your debt without resorting to bankruptcy. The FTC warns people to be wary of many of these companies that promise to remove debt for pennies on the dollar. Most cannot and the consumers are the victims.

The US Department of Justice, the FTC and the majority of attorney generals found that less than 10% of consumers complete these programs successfully and most end up further in debt! NACBA (the National Association of Consumer Bankruptcy Attorneys) explains that the “debt relief agency” system is inherently flawed. Many of these debt relief agencies are fronts for credit card companies seeking to get borrowers to pay credit card debt by shifting debt to other creditors. This can be very dangerous for anyone who is financially troubled. Here’s why.

Credit card debt typically can be discharged in bankruptcy. Yet some credit counseling agencies recommend getting new loans secured by a home or other collateral to pay down the credit card debt. Or they negotiate a reduced payoff in return for securing the debt. But the new loan (or restructured loan) used to pay off the credit card debt is secured debt that invades otherwise exempt assets such as the homestead, which can provide an exemption protecting up to $150,000 for California homeowners. Alternatively, you are required to invade other exempt property such as a retirement plan. The credit card companies get all or most of their money paid back and the borrower is stuck with secured, rather than unsecured and dischargeable debt.

Another method debt consolidators use is to create a repayment plan with the creditors in a workout outside of bankrutpcy. This plan is similar to a Chapter 13 repayment plan, but may lack some significant safeguards and usually is more expensive. You pay the debt management planner a single check for two to five years and the company then redistributes your payment to the creditors, less a commission. Over the life of the plan, the debtor usually pays 30% to 60% of the credit card debt. The fee for this typically is based on your total debt rather than the repayment plan amount, and usually is higher than a Chapter 13 trustee’s fees, which are capped by statute. Moreover, if you default on your payment plan during this period rather than complete your plan, you again find yourself facing bankruptcy and have only delayed, but not eliminated the debt. On the other hand, if your total debt is relatively small so that there is no justification to spend the money on a Chapter 13 bankruptcy (or you cannot qualify for a Chapter 13 bankruptcy and face the more expensive Chapter 11 process,) this may be right for you. Still, be careful of the debt management planner you choose. Not all are alike.

If you want to consider financial counseling before seeing a lawyer about your financial troubles, the US Department of Justice has a list of qualified and approved, non-profit financial counseling agencies. And, since they are approved, you needn’t wonder about their competence or hidden agendas.

As to the credit counseling companies that advertise, here is a simple rule: if they play on your guilt or the shame of bankruptcy, or have large up-front fees, or counsel you to default on a debt, you probably don’t want to use them. They are not your fiduciary who must place your interests first (as a lawyer must), what you tell them is not confidential, and if they are advertising, they probably are for profit — which means they are not approved by the Department of Justice. They are not in your corner, but their own.

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