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Category Archives: Laws

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3 Things to Keep in Mind Regarding the New Rule That Forbids Forced Arbitration in Nursing Homes

Like many rules, it started with good intentions, but the rule that took effect under the Obama administration that forbids forced arbitration in nursing homes and assisted living facilities (ALF) comes with confusion. The Department of Health and Human Services initiated a ban against these facilities from forcing patients and their families to give up their right to sue, ensuring that they do not have to sign a clause before being permitted to stay in the nursing home or ALF.

The facts show that nursing home abuse and neglect is predominant across the country. When a family member or patient is forced to give up their right to sue, they are giving up part of their right to protection. That changed with the new rule against forced arbitration.

Here are 3 things you should keep in mind about this rule if you or a loved one is in one of these facilities.

3 Key Points About the New Rule Against Forced Arbitration in Nursing Homes

1. The rule has still not been fully implemented.

Nursing homes and healthcare industries are fighting this rule through lawsuits. Because of this, there is an injunction in place that has prevented the ban from becoming implemented.

During this time, a negligent nursing home may still be protected under their forced arbitration clause. If your loved one was a victim of neglect or abuse in a nursing home and you signed one of these clauses, you should contact an attorney who has experience with nursing home neglect cases.

2. Just because you can’t sue doesn’t mean you aren’t allowed rights.

CMS Medicare is in the process of revising the rule against forced arbitration. Instead of forbidding it, CMS has declared that the clause must be written in easily understandable language so that patients understand what they are signing.

However, even if you have to sign it to get your loved one into a nursing home or ALF, it doesn’t mean you can’t sue at all. It means that the facility gets to avoid a lengthy court battle by going directly into arbitration instead.

3. Not all mandatory arbitration clauses are legal.

Although the rules implemented during the Obama administration have not taken effect, and the Trump administration supports the policy of forced arbitration as a way to help long-term care facilities save on costs, that doesn’t mean the clause you signed was legal. Some of these clauses have been disputed and found to not hold up in a court of law. Talking to your nursing home abuse lawyer can help you determine if the clause you signed is legal.

Even with Forced Arbitration, You Still Have Rights

Nursing home abuse and neglect is a serious situation. If you have reason to suspect that your family member or loved one is the victim of this crime, you should contact a skilled nursing home abuse lawyer immediately. They will let you know your rights and the rights of your victim and walk you through your next steps.

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8 months ago Laws

Entertainment Law: What Is it and Why It’s Important

While the field of law is very broad, there are some specializations regarding the law that can be very specific. For instance, a tax lawyer resolves national and state tax matters, while a litigator fights cases in courts and makes settlement negotiations. On the local, federal, and state levels, new case laws are being written every day. The old ones are being revised, and a lot of cases are being created and trying to be resolved.

Continuing your education isn’t mandatory in the legal field, but if you’re planning to pursue a career path of becoming a lawyer in a specific field, such as an entertainment lawyer, professional development and earning a degree in Masters of Law is important. University of Southern California is one of the universities that offers an entertainment law course.

What is entertainment law?

Entertainment law specifically impacts the entertainment industry. It’s a collection of different types of laws, which are related to the media and entertainment industry. It includes litigation and transaction laws, and also impacts the laws such as state and federal laws, common laws created on the court, and rules created by government agencies.

It’s not just for the talents that are performing in the entertainment industry; it can also be for the production and creation of entertainment content.

The following are the practices in entertainment law:

  1. Litigation – for torts, employment disputes, disagreements, and contract disputes
  2. Contact law – for contract drafts and negotiations
  3. Compliance law – compliance in different regulations in the communication in the entertainment industry
  4. Non-compete agreements – restricts a talent to work for a competing company
  5. Labor and employment – to make sure that staff and talents are following labor and employment laws, which include worker’s compensation, safety regulations, fair hiring practices, and maximum working hours allowed

Other practices involved in this law are about intellectual properties, businesses, taxation, security, and privacy.

What areas of the entertainment industry are covered by entertainment law?

Entertainment law covers different areas of the entertainment industry, which have their own specific policies, rules and regulations, agreements, and others. These include:

  • Film – chain of title issues, talent agreements, copyright issues, and trademarks
  • Multimedia – video game development productions, information technology law, software licensing
  • Music – producer and talent agreements, and music industry negotiations
  • Internet – copyright and trademark policies, and privacy issues
  • Publishing – advertising, author agreements, models
  • Television and radio – broadcast licensing, regulatory issues, and mechanical license
  • Theatre – co-production agreement, rental agreement, performance-oriented issues
  • Visual arts and design – consignment of artwork issues, sculptor’s moral rights, fine arts

Who are practicing entertainment law?

Both transactional and litigation lawyers are practicing entertainment law. However, most lawyers in entertainment law specialize in just one type of practice, since it’s more practical than doing both litigation and transactional law.

They can work as in-house counsel wherein the client is the employer, or as a private attorney who can have individual talents or corporate entities as clients.

Where is entertainment law being practiced?

Most entertainment lawyers can be found in Los Angeles, Nashville, and New York City since these cities provide more jobs to do, and a majority of production studios are operating in these areas.

Entertainment lawyers can still practice outside these cities; however, work can be limited. Unlike in the past, a lot of production in the entertainment industry takes place in minor cities today. Other entertainers, local bands, radio talents, and television talents residing in their city also need entertainment lawyers on their side. Although entertainment lawyers won’t get to practice full-time outside major cities, they can still handle entertainment cases for their litigation and transactional law practice.

The importance of entertainment law

Entertainment lawyers can fill several roles, which depend on what their specialization is and what their clients need. Here are some of their functions, which also show their significance in the industry:  

  • Review legal documents such as licensing agreements, recording agreements, bank loans, appearance release, investments, and sponsorship deals
  • Work on financial agreements
  • Prepare form agreements
  • Facilitate deals in distribution
  • Negotiate and draft contracts
  • Ensure that their clients understand the documents they’re signing
  • Protect clients’ interests
  • Can be liaisons to connect entertainers or talents with networks, venues, agents, and professional associations
  • Can defend their clients regarding their intellectual property rights

Entertainment Law: What Is it and Why It’s ImportantOther than those listed above, they can also assist or give recommendations about their clients’ budgets. They can be helpful in advising their clients about the serious financial and legal consequences of the projects they’ll accept.

Conclusion

Practicing entertainment law can be a fast-paced and challenging career that provides a rewarding and steady job. Lawyers can include entertainment law cases as a part of a wider practice or just focus on entertainment law exclusively. Entertainment law has something to offer, whether you prefer drafting documents, pouring over regulations, or being in the courtroom.

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5 Legal Requirements for Starting a Small Business

Starting a small business can change your life for the better, allowing you to take control of your own destiny and to build your reputation in the local community and beyond. If you’re particularly lucky, you can turn it into a family business and get your partner or your children involved.

At the same time, though, it isn’t always easy. There are specific legal requirements that you need to adhere to which can change from region to region, and if you find yourself falling foul of them, you could be in for a fine – or worse!

And so without further ado, here are five steps to starting a business for those who are worried about legalities and compliance. Let’s get started.

5 Legal Requirements for Starting a Small Business5 Legal Requirements for Starting a Small Business

     1. Do you need help?

If you’re struggling, think back to when you were a student and you got college assignment help. Now it’s time for you to seek legal help! Hiring a lawyer or even just a business expert can save you a lot of time in the long run because you can make sure that everything is in order right from the very beginning.

     2. Can you use the name?

One of the earliest things that people tend to do when starting out is to come up with a name for their company. Just remember that one of the most basic legal requirements for starting a small business is to make sure that you’re legally allowed to use the name. Make sure that nobody else has copyrighted key terms and consider copyrighting them yourself.

     3. Have you sorted your tax?

In the United States, your business will need to comply with federal, state and local tax laws, while in the UK you’ll need to register either as self-employed or as a limited company, business partnership or social enterprise. Make sure that you’re registered and that you know how much tax you need to pay so you can save up and pay on time accordingly.  To do that successfully, you’ll have to either hire an accountant or do the accounting by yourself. With the use of software, you can easily sync all your transactions from your CRM or POS system (if you have one).

     4. What are the local employment laws?

While you may be planning to start out with just yourself, if your business grows then you’ll eventually find yourself taking on other employees to help you with the workload. If that’s the case, you’ll need to make sure that you’re in full compliance with any laws that cover your area. Of course, it’s also in your best interests to be an honest employer because word spreads and if you treat employees unfairly, no one will want to work for or with you.

     5. Do you have the right licenses?

In many cases, you’ll require certain permits and licenses if you want to do business. The same goes for if you need to obtain permission to use certain patents and even images. For example, you may require the licenses to use imagery in your social networking presence or to include the logos of a company whose products you stock.

5 Legal Requirements for Starting a Small BusinessConclusion

Now you know how to legally start a business, the next step is for you to make your dreams a reality. Carve out some time to follow the steps to starting a business that we’ve shared with you, but make sure that you’re ready for the commitment required before you get started.

Being able to legally create a business is one thing, but to make it sustainable is another. Spend some time reading articles and how-to guides and be sure to perfect your business plan so that you get started with the most solid foundation possible. Good luck.

Author Bio

Bryan Davis is a freelance writer and registered business owner. He writes about his successes and failures in the hope that he can stop other people from repeating his mistakes. He believes that anyone can be a businessperson and prides himself on the fact that he helps people to reach their full potential.

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What are the benefits of using a family mediation service?

Family mediation is a positive, forward-thinking and confidential process that resolves personal and professional disputes using a non-biased third party to help facilitate a mutually and satisfactory outcome.

Most people will have minimal contact with the legal system. But, in the situation where they do there may be many questions asked. It’s a very stressful situation when a couple are going through a separation or divorce. Their lives that they have lived together has dramatically changed and there will be many concerns about property, money and children.

Family mediation is now becoming the fastest growing method of resolving family disputes. Often agreeing things without the help of a third-party mediator isn’t an easy process as you try to make arrangements for the future. THB Legal can help you resolve differences in many respects including child arrangements, separation, divorce and relationship difficulties.

Family mediation give the participants involved the opportunity to discuss all possible options in a neutral and safe practicing environment before coming to a mutually agreed arrangement. During the process, either party remain in total control and no arrangement or decision will be forcibly imposed. Family mediators are highly skilled in helping separating partners explore all possible options thoroughly by exploring the advantages and disadvantages of each proposal made towards either party. A mediator nor the parties involved would be able to determine whether a suggestion was fair or not unless all of the cards were laid on the table.

Mediation that deals with property and finance is facilitated on the basis that there is full financial disclosure from each party. Only then can the mediation process begin. The sole reason for this is that the financial disclosures set the context of the process itself and the prospective proposals made by either party. Family mediation is a far more time efficient service and less expensive than litigation especially when there are financial issues involved.

The THB Legal Family Mediation Process

The first step in the process is to attend a mediation information and assessment meeting (often called a MAIM) with a specially qualified family mediator. The three aims of a MAIM are –

  1. Explain the alternatives including mediation compared to the court processes that are available for separating couples.
  2. To give you the opportunity to decide on what route you think will be best for your relationship breakdown and what is involved in the breakdown. For example, children, financial and property issues.
  3. To explore and determine whether using a family mediation service would be a safe and effective way to resolve your dispute in your circumstances.

During the MAIM you will be able to ask the mediator any questions that you might have regarding the service. If you do decide that family mediation is the right process for you then the mediator will contact your ex-partner and invite them to attend their own MAIM to discuss the process with them. During this session, mediators are also able to offer legal aid mediation.

What Happens after a Mediation Information and Assessment Meeting?

Upon seeing both parties, the mediator will then arrange a joint session. The number of sessions typically depend on the number of issues that need to be resolves but normally between 2 – 6 sessions and lastly for 1 – 2 hours.

During these sessions, you and your ex-partner will express your views and concerns to each other and to the mediator. The mediator who is not biased to either party will then help you focus on what needs to be done to forward and more importantly how it can be done. Once an agreement how been made between both of the parties then this will be recorded by the mediator just so you are both clear on what the agreement includes and prevent any confusion once the mediation process concludes. Its important to highlight that once an agreement has been made, you may need to have the agreement in question put into writing so that it would be a legal binding agreement but this typically depends on the complexity of the dispute.

It is vital that if you do have any concerns about any agreement made during the mediation process then you are free to seek legal advice so you know what can be enforced by law.

Child Arrangements

When the relationship between two parent’s breakdown it is normally their utmost priority to make arrangements for the children involved.  Above all else that’s involved in a separation, you and your ex-partner are no longer together but you are still and always will be parents to the same children. We believe that the best people to decide a child’s future is the parents and we are here to help you make future arrangements that are in their best interests.

Research has also shown that children can be more adversely affected by the uncertainty of their parent’s separation rather than the separation itself. Mediation helps to improve a productive level of communication between parents will enable them to move forward with an organised and working relationship for the future. These plans that are formulated by mutual consent can help restore trust between parents and help them move on emotionally but also practically with children in mind.

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8 months ago Laws

Did Actor James Woods’ Tweet Defame a Woman at a Trump Rally?

Portia Boulger filed an action for defamation and invasion of privacy based on a tweet by James Woods, a well-known movie actor.

In March 2016, then-presidential candidate Donald Trump held a rally in Chicago, and that evening, the Chicago Tribune posted a photograph on its Twitter account of a woman at the rally, wearing a Trump T-shirt, and giving a Nazi salute. Twitter posted the Nazi salute photo along with a shot of Boulger and a caption identifying her as an “Organizer (Women for Bernie).” The two photos and caption were accompanied by the (false) statement, “The ‘Trump Nazi’ is Portia Boulger, who runs the Women for Bernie Sanders Twitter account. It’s another media plant.” Then Woods tweeted the same two pictures, along with a short biography of Boulger, and added: “So-called #Trump ‘Nazi’ is a #BernieSanders agitator/operative?” Woods had more than 350,000 Twitter followers.

The same day, multiple news outlets identified the woman in the Nazi salute photograph as Birgitt Peterson, a Trump supporter from Illinois. Woods didn’t delete his original tweet, but instead tweeted a follow-up: “Various followers have stated that the Nazi Salute individual and the #Bernie campaign woman are NOT the same person. #Chicago #Trump.”

A week later, Boulger’s attorney asked Woods’s attorney to have him delete his tweet and issue a retraction and apology. Woods deleted the tweet the next day, and posted three new tweets:

  1. “I have an opportunity to clarify something I challenged immediately when it hit Twitter. Portia A. Boulger was NOT the ‘Nazi salute lady.'”
  2. “Ms. Boulder [sic] has reached out to me and asked me to use my many followers to stop people from harassing her. I am more than happy to do so.”
  3. “Though she supports @BernieSanders, I am happy to defend her from abuse. I only wish his supporters would do the same for other candidates.” 

In the time between Woods’s initial tweet and the tweet’s deletion, Boulger received hundreds of obscene and threatening messages, including death threats. Boulger said because of Woods’s tweet, she suffered “severe emotional distress including sleeplessness, episodes of reasonable apprehension of personal assault or attack, anxiety and depression.”

Boulger sued Woods, and the district court granted Woods’s motion for judgment on the pleadings, finding that his tweet could be interpreted as a question and not a statement of fact, and that the tweet was protected under Ohio’s innocent construction rule. Boulger appealed.

Chief Judge R. Guy Cole, Jr. wrote in his opinion for a Sixth Circuit panel that to establish a claim for defamation, a plaintiff “must show (1) that a false statement of fact was made, (2) that the statement was defamatory, (3) that the statement was published, (4) that the plaintiff suffered injury as a proximate result of the publication, and (5) that the defendant acted with the requisite degree of fault in publishing the statement.” Failure to establish any one element is fatal to a defamation claim.

Judge Cole said that in this case, only the first element was at issue. As such, the case “boils down to one question: does Woods’s tweet constitute a false statement of fact?”

The judge said that rather than determining whether a statement is protected opinion or actionable fact, the Court was asked to analyze whether Woods’s question constitutes a statement at all. Ohio case law indicates that even in a unique circumstance such as this one, the four-prong, totality-of-the-circumstances test is still the appropriate framework.

Under the first factor, a court must “ determine whether the allegedly defamatory statement has a precise meaning and thus is likely to give rise to clear factual implications.” Woods argued that because the specific language at issue was a question—and thus not likely to give rise to clear factual implications—his tweet wasn’t a statement of fact. Alternatively, he argued that his tweet wasn’t actionable because the word “Nazi” is “inherently imprecise and subject to myriad subject interpretations.”

The judge noted that Woods spent more time arguing that his use of a question mark inherently precluded his tweet from qualifying as a statement of fact. But the judge held that a blanket protection of defamation liability for any and all questions was inappropriate. Judge Cole  said it was worth noting, however, that other circuits have opined that “it is generally settled as a matter of defamation law . . . that a question, ‘however embarrassing or unpleasant to its subject, is not accusation.'” Nonetheless, these holdings don’t amount to a per se rule that questions cannot be defamatory, he said.

Woods argued that the question mark showed that he intended the tweet to ask a question to his followers. However, Judge Cole found that Woods’s intentions were irrelevant—all that mattered to the court was the reasonable reader’s interpretation of his tweet.

The judge explained that some readers likely viewed the tweet as an insinuation that the woman in the Nazi salute photograph was Boulger. It seemed equally plausible, though, that other readers interpreted the tweet as posing a question. Judge Cole held that it would be “nearly impossible” to say that Woods’s tweet had a precise meaning as required by Ohio law. As such, the first factor weighed in favor of non-actionability.

The second factor considers whether the allegedly defamatory statement is verifiable. Judge Cole said in this case, it  wasn’t apparent. As a result, the analysis moves to the context of the tweet. The general context is analyzed to determine “the larger objective and subjective context of the statement[,]” so that the alleged defamatory statements are not examined in isolation. Put another way, the court considers the “immediate context” in which the allegedly defamatory statement appears.

The district court held that “because the nature of a ‘tweet’ is fundamentally different from a statement appearing in the context of a longer written work,” and because most Twitter users don’t sit down and read a Twitter account in chronological order, there’s no “general context” to examine. While tweet “does not map neatly” into the analysis of general context, that doesn’t end the inquiry, the district court judge wrote. Instead, the court considered the allegedly defamatory statement in the context of Woods’s other tweets on that date.

A look at Wood’s Twitter feed from that date showed that although he posted news articles, his tweets also had his own “colorful” commentary. The judge said that this demonstrated that a reasonable reader of those tweets likely knew that he made frequent use of sarcasm, exaggeration, and hyperbole, which are characteristics more likely seen in an opinion, not a statement of fact. As such, Judge Cole held that the general context could lead a reasonable reader to believe the tweet at issue wasn’t a statement of fact.

Courts must examine the type of medium at issue and consider how it would influence the reader’s viewpoint on whether a message is one of fact or opinion, the judge went on. At base, allegedly defamatory statements will ultimately fall somewhere on the spectrum “between paradigmatic statements of fact and paradigmatic statements of opinion.” The factors don’t definitively tip the scale in either direction, Judge Cole found. Thus, he turned to Ohio’s innocent construction rule. Under the rule, “a statement reasonably susceptible to both a defamatory and an innocent meaning must be construed, as a matter of law, to have an innocent meaning.” “It matters not that the defamatory meaning is the more obvious one. So long as the statement may reasonably be read to have an innocent meaning, the innocent construction rule commands that the statement be deemed non-defamatory.”

Judge Cole held that Woods’ tweet was reasonably susceptible to both a defamatory meaning—that Woods was asserting Boulger was the woman giving the Nazi salute—and an innocent meaning—that Woods was merely asking his followers a question. Because the tweet could reasonably be read to have an innocent meaning, under the innocent construction rule the tweet, as a matter of law, it wasn’t actionable.

The judgment was affirmed.

Boulger v. Woods, 2019 U.S. App. LEXIS 5841 *; 2019 FED App. 0030P (**; __ F.3d __; 2019 WL 944834 (6th Cir. February 27, 2019)

— Kurt R. Mattson, JD, LLM, MLIS, President – Union Legal Research

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8 months ago Family Law , Laws

Fighting for Your Family: How to Win Custody as a Father

Divorce is a hard process to deal with. The more laborious process, however, is finding a way to get child custody. This tends to be much worse for fathers.

In 9 out of 10 families, the mother tends to get preference when it comes to custody. This was the legal truth because of the “tender years doctrine.” Even now in its abolishment, it still happens.

In any event, is there a way how to win custody as a father? Is there a chance of changing custody from mother to father?

What if we tell you there is?

In this article, we’ll teach you simple ways to get ahead of the custody battle for fathers. These will help you get more time with your kids. Whether you’re fighting for full custody for fathers or filing for joint custody, this is what you need.

1. Pay Your Child Support

In the custody battle for fathers, the top priority of courts are the children. The court will ask you to provide for the children. To improve your chances of getting custody of a child, set the right child support payments.

Make an agreement with the mother and provide your dues to your kids. Maintain records and receipts of transfers. Create a way to make sure that the kids have enough for all their needs.

2. Build A Relationship With The Kids

The next thing courts look when filing for joint custody is the relationship with the father. Courts give the children to primary caregivers – the one left at home to care for them. If that’s not you, you want to make sure you build a good, kind relationship with your kids.

Many courts will take into account the children’s opinions of their parents. You can do this by spending more quality time. While changing custody from mother to father takes time, you can be close with your kids by giving them your time and loving attention.

3. Be Ready With Details

When you’re fighting for changing custody from mother to father, judges will ask about details. You want to make sure you are ready in case this happens. Judges will ask pertinent things that will help you accommodate the children.

Getting custody of a child means a good, safe space for them to live in. This also means you can provide not only financial but emotional support as well. This takes into account how you prepare to educate your child and their after-school activities.

4. Start Arbitration

In a custody battle for fathers, legal mediation or arbitration is the best solution. You want to start small so a legal arbitration can help you set your case for custody first. If you feel confused, you can find out more at Hardesty Law Office.

Only when things go ugly would you want to go to court. Settlements are fantastic. These are the best when filing for joint custody.

Court hearings tend to be adversarial and expensive. If you can create a mutual settlement with the mother in your favor, that’s the best outcome you can get.

This Is How To Win Custody As A Father

Full custody for fathers is expensive and stressful. If you want to know how to win custody as a father, you need to work. Provide for your kids and connect with them, so they prefer your time.

If you need more legal help for getting custody of a child, you need a good family lawyer. What you need is the Halt Lawyer Directory.

The Halt Lawyer Directory is the best way to find the right attorney for you.

From divorce attorneys to family attorneys, check with Halt Lawyer Directory now. Get the legal help you deserve.

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8 months ago Laws , Rights

What You Need To Know About Student Rights Litigation

As students, you have the right to academic freedom, the right to self-expression and the right to feel safe and secure on the premises of the school. These rights, among many others are vital to the growth and well-being of everyone in the academic arena.

However, sometimes the students’ rights are pushed aside and neglected. This should never be the case, especially when the school is one of the places where the youth is being molded to become the best and most effective versions of themselves for the future of society.

In law, we have what’s called Student Rights Litigation. This is a particular and specific area of specialty that some lawyers and law firms practice.

These student rights stem from the wider and more specific right of every person called due process. Due process is embodied in our Federal Constitution which is specifically found in the Fifth Amendment. The Constitution says that “no one shall be deprived of life, liberty or property without due process of law”.

To put it simply, due process protects the rights of the citizens, in this case the students. This due process clause commands that everybody in all cases shall be given a chance to be heard and have an equal standing with regard to the strict rules of procedure.

Litigation takes place when the school, college or university fails to give the student complainant and student defendant a chance at a fair en banc trial. As a result, the fundamental right to due process of the students is violated.

In student rights litigation, the legal counsels deal with cases of grade appeals, probation appeals, on-campus bullying, drug possession, sexual abuse or harassment, discrimination, and many others.

If you, a family member or a friend have experienced a partial and unjust trial at school, the best thing to do is to make use of the services of a seasoned lawyer so that he or she can effectively defend you and your right as a student and as a citizen of the country.

In choosing a lawyer to represent you in court, make sure to pick a lawyer who has a long experience in litigation like Title IX Attorneys. Having lengthy experience gives the lawyer the advantage of having been exposed to the many complex and unusual circumstances of cases similar to yours.

Moreover, pick a lawyer based on expertise. A taxation lawyer and a student rights lawyer may both be lawyers in the eyes of the law, but they have a very different set of skills and experiences. Choose a lawyer who specializes in student rights litigation to increase your chances of winning the case.  However, there are situations when you don’t need to look for a decent lawyer to get the needed information. For example, if you are writing a law paper, you can just read up some samples and guides on the Pro-Papers.

If you do not know any student rights litigation lawyers in your area, consider asking your friends and relatives for good recommendations. If they know one, you can start from there, but do not limit your options just yet. The internet is a rich source of information about lawyers and law firms who you can consult with. Choose wisely because the skill and knowledge of the lawyer you hire is vital to your case.

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8 months ago Laws

Second Circuit Holds Hostile Work Environment Claims Cognizable Under ADA

The Second Circuit has previously assumed, without deciding, that hostile work environment claims are cognizable under the Americans with Disabilities Act (ADA). However, in a recent decision, that Circuit joins others in specifically holding these discrimination claims are cognizable under the ADA.

A plaintiff in a recent New York case on appeal to the Second Circuit was found to have presented a triable issue of fact regarding his ADA hostile work environment claim because he asserted that for several months, and within hearing of supervisors, his coworkers mocked him for his Tourette’s and OCD disabilities, and the supervisors failed to intervene.

Christopher Fox worked at Costco for 21 years and has suffered from Tourette’s Syndrome and Obsessive-Compulsive Disorder (“OCD”) since birth.

Fox brought claims against Costco under the ADA and state law, alleging hostile work environment, disparate treatment, failure to accommodate, and retaliation. The district court determined that a rational fact-finder could not find evidence in the record to support sufficiently any of Fox’s theories of recovery. The Second Circuit affirmed the district court’s judgment as to Fox’s disparate treatment, failure to accommodate, and retaliation claims. But as to Fox’s hostile work environment claim, it reached a contradictory conclusion.

Fox started working for Costco’s Holbrook, New York warehouse in 1996. In 2013, the Costco got a new General Manager, Larry Resnikoff. Assistant Manager Glenn Johnson reported to Resnikoff. Fox’s employment discrimination claims stem from the stress he suffered at Costco after this change in management.

While working as a greeter under the new management, Fox was reprimanded twice by a manager who wasn’t his supervisor. This manager, however, took no formal disciplinary action against Fox.

Costco also received two customer complaints about Fox’s behavior. In 2013, a Costco customer said that Fox’s comment that she looked beautiful with her pocketbook was inappropriate and called management to report the incident. When Resnikoff addressed the incident with him, Fox admitted to speaking to the customer but claimed that he didn’t mean to offend her. Resnikoff told Fox he’d be terminated if another similar complaint were received. After the second incident a year later,  Resnikoff suspended Fox for three days without pay and transferred him to another position where he’d have less direct contact with members. Neither Fox’s pay nor his benefits were reduced as a result. Fox understood that the change in his position was in lieu of termination.

As part of Fox’s neurological condition, he would often touch the floor before moving and would cough when he would feel a verbal tic come on in order to prevent others from hearing him swear. Fox testified that once he began his position as an assistant cashier, other employees mocked him for his Tourette’s and OCD. In his deposition, Fox described how certain employees would make “hut-hut-hike” remarks to mimic Fox’s verbal and physical tics. Fox also testified that these comments “were audible to the managers of the Holbrook warehouse from their position on the warehouse’s podium,” and “happened in plain view of the Supervisors and the Front End Managers and nothing was ever said.” Fox testified further that these types of comments happened for “months and months” and “whenever” he would experience tics. However, Assistant Manager Johnson testified that he was unaware of anyone saying “hut-hut-hike.”

In March 2014, Fox asked his supervisor for a break to go home and take his medication. According to Fox, the supervisor didn’t find him a replacement, and he had to ask again. It took several hours from his initial request until he was allowed to go home. Also during March, Fox asked his supervisor for permission to take his break so he could go to the pharmacy and have a prescription re-filled; she told him he couldn’t because he’d used all his breaks for the day. Fox claims he never received his last break that day.

Fox decided to e-mail Costco’s CEO to explain his conditions, his long-time employment with Costco, the change he’d observed in the Holbrook Costco management style, and the fact that the change in atmosphere at Costco caused him “stress,” which “aggravate[ed] [his] tourettes,” requiring him to take a month of medical leave. Fox also wrote the CEO about the two incidents when he was denied his break. Fox didn’t mention the “hut-hut-hike” comments.

Although this wasn’t the formal Costco complaint procedure provided in the employee handbook, the CEO, nonetheless, started an investigation into Fox’s complaints. Pursuant to his investigation, Resnikoff met with Fox and the other employees involved in the break incidents. After the investigation, Fox’s direct supervisor was transferred to another position. It is unclear if any other supervisor received any sanctions. Fox didn’t dispute that his “concerns were put at ease” by this investigation.

Nevertheless, he claimed that after he sent the e-mail to the CEO and that investigation took place, Costco employees continued to treat him poorly because of his disability. In November 2014, Fox had a panic attack while on the job and then went on indefinite medical leave. He did not return to work.

Circuit Judge Peter W. Hall, in his opinion for a panel that included Judges Dennis Jacobs and Christopher Droney, held that hostile work environment claims are cognizable under the ADA—and that there was evidence here sufficient to make out Fox’s hostile work environment claim to survive summary judgment.

Judge Hall opined that the Court was persuaded by its sister Circuits, which have reasoned that claims for hostile work environment are actionable under the ADA. Under the ADA, a covered employer “shall [not] discriminate against a qualified individual on the basis of disability in regard to . . . terms, conditions, and privileges of employment.” 42 U.S.C. § 12112(a) (emphasis added by the court). Citing a 2004 Tenth Circuit case and quoting 42 U.S.C. § 2000e-2(a)(1), Judge Hall noted that “Congress borrowed this language from Title VII, which similarly provides that it ‘shall be an unlawful employment practice for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment.” (emphasis in original decision).

“Thus, when Congress included the phrase ‘terms, conditions, and privileges of employment’ in the ADA, it was using a legal term of art that prohibited a broad range of employment practices, including workplace harassment,” Judge Hall’s opinion went on, quoting the Eighth Circuit Court of Appeals from 2003.

When the ADA was enacted, Justice Hall explained, the Supreme Court had twice concluded that Title VII provided for hostile work environment claims. “By borrowing Title VII’s language, Congress suggested that it intended for the ADA to be coextensive, at least in this respect, with Title VII. This view is bolstered by the shared purpose of Title VII and the ADA to prevent discrimination against a defined class of people.”

The Second Circuit recognized that because the ADA echoes and expressly refers to Title VII, and because the two statutes have the same purpose—the prohibition of illegal discrimination in employment—”it follows that disabled Americans should be able to assert hostile work environment claims under the ADA, as can those protected by Title VII under that statute,” quoting a 2001 Fourth Circuit case.

To prevail on a hostile work environment claim, Fox must show (1) that the harassment was ‘sufficiently severe or pervasive to alter the conditions of his employment and create an abusive working environment, and (2) that a specific basis exists for imputing the objectionable conduct to the employer. Although the victim must subjectively perceive the conduct as abusive, the misconduct shown also must be “severe or pervasive enough to create an objectively hostile or abusive work environment,” Judge Hall explained, quoting the U.S. Supreme Court. Even an isolated act may be so serious that it requires the conclusion that the terms and conditions of employment were altered, he said. As the Supreme Court held, a plaintiff alleging a hostile work environment claim under the ADA, therefore, “must demonstrate either that a single incident was extraordinarily severe, or that a series of incidents were sufficiently continuous and concerted to have altered the conditions of her working environment.”

Courts look to the totality of the circumstances to determine whether a plaintiff has met this burden, including proof of “the frequency of the discriminatory conduct; its severity; whether it [was] physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interfere[d] with [the plaintiff’s] work performance.”

Judge Hall found that the record supported a finding that Fox believed the work environment at the Costco to be abusive. The parties didn’t dispute that—the issue was whether the work environment was objectively abusive, and, if so, whether the abusive conduct can be imputed to Costco.

The Court explained that legitimate reprimands by an employer are not abuse. Nor are the disciplinary actions taken against Fox in response to complaints of Costco members evidence supporting this claim. Resnikoff conducted his investigation in accordance with Costco’s company policies, and he concluded based on his interview with Fox that both customer complaints constituted “major” violations.

Fox also testified that the “hut-hut-hike” comments “were audible to the managers of the Holbrook warehouse from their position on the warehouse’s podium,” and “happened in plain view of the Supervisors and the Front End Managers and nothing was ever said.”

The district court, however, held that to avoid summary judgment, Fox needed to introduce “evidence regarding the number of times the comments were made per shift, week and/or month” to show that the “hut-hut-hike” comments pervaded Fox’s working environment.

Judge Hall said that the district court “demanded too much” of Fox. Fox wasn’t required to “list the shift, week, or month to be able to present this issue to a jury.” Because he identified specific comments—his co-workers mocking his Tourette’s by repeating “hut-hut-hike,” presumably while touching the floor—and because he testified that “whenever I said [the F word], they said ‘hut-hut-hike'” for “months and months,” he provided evidence sufficient to meet his burden to demonstrate pervasiveness.

In addition, and crucial to its analysis, Judge Hall noted that Fox introduced evidence that his supervisors witnessed this conduct for “months and months” and did nothing, demonstrating a specific basis for imputing the objectionable conduct to Costco. Thus, Fox satisfied his burden to defeat Costco’s motion for summary judgment on his hostile work environment claim, the Second Circuit held. In closing its analysis, the Court noted:

[T]easing in the workplace is not uncommon, and in most instances probably not actionable. Stuttering is mimicked; the overweight are called names; acne, baldness, and height are mentioned for a laugh. All of this can be hurtful. But mockery of overt features does not necessarily support damages, and the fact that Fox was mocked for the manifestations of his disability rather than other overt features does not bear on whether the workplace environment was objectively abusive.

However, viewing the evidence in the light most favorable to the plaintiff, Judge Hall and the Second Circuit panel held that Fox raised an issue of fact as to whether the frequency and severity of the mockery rise to the level of an objectively hostile work environment. As such, the judgment of the district court was affirmed in part, vacated in part, and remanded.

Jonathan Tand of the Manhattan law firm, Raiser & Kenniff, represented Fox on appeal. Tand commented that he and his client were pleased with the outcome.

“My client is relieved that he will get his day in court as this has been a long and difficult journey for him,” Tand said in a statement.

Seyfarth Shaw partner Lorie Almon represented Costco.

Fox v. Costco Wholesale Corp., 2019 U.S. App. LEXIS 6714, — F.3d —, 2019 WL 1050643 (2nd Cir. March 6, 2019)

Kurt R. Mattson is the President of Union Legal Research. He is the former Director of Library Services and Continuing Education at Lionel Sawyer & Collins in Las Vegas. Prior to this, he worked at BNA and other legal publishers, spending a substantial portion of his career working for Thomson Reuters. He serves as a consultant for several businesses, law firms, and marketing companies.

Kurt received his JD from William Mitchell College of Law and his Masters of Law (LLM) from George Washington University. He received his Masters of Library Information Science (MLIS) from Wayne State University.

Kurt is the editor of Lexis’ BSA/AML Update, co-author of A.S. Pratt’s Mortgage Procedure Guide to Federal and State Compliance, and author of Fair Debt Collection Practices: Federal and State Law and Regulation. He is also a contributing author of Brady on Bank Checks. Kurt is also a contributor to other business and legal publications.

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From the Strip to the Web: An Interesting History of American Casino Laws

You may not realize it, but gambling is as American as apple pie. The country has a history of gambling and casino laws that have led to the explosion of legal gambling beyond the borders of Nevada.

How have American attitudes toward gambling been reflected in our laws since we gained independence? We will take you through that history in this guide.

Keep reading to learn the storied history of gambling in the United States.

Early Days of Gaming

The history of gambling in the U.S. goes back to pre-Revolutionary War days. A British law from 1769 restricted lotteries, which the colonies used to fund essential services. This stoked tension between American settlers and the crown, which contributed to our fight for independence.

Once the war was won, legal gambling had a brief golden age in the country. The Las Vegas of the early 1800s was the Mississippi River. This was the era of riverboat gambling, and this form of entertainment flourished.

Growing Pains

Puritanical morals started to brush up against betting-related entertainment in the mid-1800s. This was around the time of the Gold Rush in California. Gambling migrated west with the prospectors.

One form of betting that has remained relatively untouched by restrictions is horse racing, which is legal across the country. All three races in horse racing’s Triple Crown—the Belmont Stakes, the Preakness, and the Kentucky Derby—were established by 1875. Since then, Derby Day has become one of America’s most beloved and nostalgic makeshift holidays.

Since gambling has been regulated by various government bodies over the years, it would fill a library for us to compile all of the laws around it. But by the early 20th century and especially Prohibition, games of chance were on the outside of the law. They were mostly the domain of the Italian mob and other organized crime syndicates.

Modern Casino Laws, Sports Betting, and Online Gambling

Gambling grew in popularity as the 20th century progressed. The stock market crash of 1929 that gave way to the Great Depression saw the legalization of gambling is Nevada as a way to generate revenue. From there, havens of gambling emerged in the following cities.

  • Atlantic City: Gambling legalized in 1977.
  • Native American reservations: The Seminole tribe opened the first reservation-based casinos in 1979. The Indian Gaming Regulatory Act of 1988 puts decisions around gambling on tribal lands in the hands of the states.
  • Illinois, Louisiana, and other states: Riverboat gambling legalized in the 1990s.

Sports betting and online gambling remain issues of states’ rights, thanks to a couple of key laws. In 1992, the Professional and Amateur Sports Protection Act (PASPA) went into effect. This left Nevada, Oregon, Delaware, and Montana as the only states exempted from its restrictions on sports betting because of their existing industries.

In 2006, the Unlawful Internet Gambling Enforcement Act put online gambling in the hands of state regulatory agencies. As a result, there are still many murky areas around interstate internet gambling. This blog is a great resource for parsing some of the confusion in this area.

Don’t Leave Your Representation up to Chance

Gambling is big business in the United States, despite the fact that casino laws remain complicated. Most of them come from state governments, with the federal government staying relatively hands-off.

If you find you need help sorting through these laws because of your own gambling winnings, we recommend searching for representation in our database of lawyers

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The Importance of Reading Blogs on Real Estate Law

Often there are situations where employing the services of a lawyer happens to be a natural move. Such as in case of a criminal arrest, battle over custody or a contentious divorce. But with regards to investing in real estate like purchasing a house, not all hurry in calling a lawyer. They perhaps assume that ample research coupled with advice from various homeowner friends is what will suffice for a smooth transaction.

But the truth however is real estate lawyers exist for a vital reason. First they are adept with the law along with being familiar with the different prospective pitfalls as well as be by your side while making this vital investment in the future and that of the family.

Benefits Galore

If you wish to know more about the real advantages of hiring a real estate lawyer then keeping reading the blog further.

  • Professional Contract Review- Contracts related to real estate purchase can be large documents that are full of legal jargon. One may indeed feel pressured from eager sellers to sign the contract without adequately understanding and reading the contents. Professional real estate lawyers will make sure that you thoroughly understand every term present in the contract as well as advice about potentially detrimental contents if any.
  • Address Complex Contracts- At the time of investing in real estate especially from corporations, trusts or partnerships, the negotiation, and the contract will be immensely complex. Here a real estate lawyer can act as a savior. They will possess the required expertise in such transactions thereby ensuring that the contract remains legally valid and at the same time respect the charter agreement regardless of the type of entity one does business with. To know more contact Friscia Law.
  • Addressing Liens and Title Search- Post signing the purchase agreement, the title search will be needed for informing the buyer and the institution which issued the mortgage regarding the seller possessing the legal right of selling the property. Here there will be no encumbrances like liens or judgments which will prevent or hinder the transaction. In fact, even if this form of a problem crops up, the real estate attorney will offer suggestions to the lawyer to satisfy such claims and later on obtain proof of satisfaction.
  • An Ideal Closing- At the time of a real estate purchase closure a couple of important steps take place. These include closing paper’s preparation like the deed, the property passes title from the buyer to the seller, pay the purchase price balance, and the preparation of a closing statement that will itemize the transaction. The real estate lawyer will offer valuable assistance should there be any disputes over costs or there are any last-minute questions.

The bottom line is, for anyone who is in the process to purchase a commercial real estate or a home and looking for experienced legal advice should right away contact the best real estate lawyer. Always hire an experienced lawyer as they will have the expertise and insights required to safeguard your interest from offer till closing.

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