Now, let me just say off the bat that I do not believe these are the 50 best shows of this decade (although some certainly are). These are just the 50 television shows that brought me the most entertainment, the ones that I am most fond of when I think back on the decade. I contemplated doing this in order of love/respect but then this post would never get done so I’ll do a Top 10.

I decided to leave off The Simpsons and South Park because they’ve been on for so long (and I needed any excuse to make room for other shows) but they both had great episodes in the 00’s and if I didn’t need the room, they’d make the cut.

I tried to stick with shows that had at least two full seasons under its belt unless the show had been canceled like Freaks and Geeks.

And, no, I’ve never watched The West Wing or ER and that’s why they aren’t on the list.

My Favorite 10 Shows of the 00’s:

10. Six Feet Under: I remember watching the series premiere with Kristy and Fatima and all of us not being that impressed. I remember also watching the closing montage in the series finale and man tears streaming down my cheek

9. Spaced: I don’t remember when I discovered Spaced. I think I saw Shaun of the Dead first and then downloaded both seasons and then sat my brother in front of the computer and made him watch them all.

8. 24: You win, Erwin.  Erwin begged me to watch 24 and I didn’t because I was watching something else that came on at the same time (pre-DVR) but I decided to watch starting season two and was instantly hooked.  Fun fact: Jack Bauer has killed 227 people in seven season (which equals seven days) SO FAR

7. Battlestar Galatica: I watched the first half of the TV movie that set up the series and I wasn’t that impressed. I think I didn’t like the CGI of the Cylons.  But halfway through season one, I started reading all these awesome reviews so I went back and caught (luckily the Sci-Fi had no other original programming so it was easy to catch a marathon).  I wasn’t in love with how the show ended but it was still an awesome ride.

6. Mad Men: I am a sucker for period pieces and I was hooked from episode one.  All three seasons have been stellar and I really hope it doesn’t tail off and go to shit.

5. The Sopranos: What else can be said about the most discussed television show on the 00’s? I think Tony (spoiler alert) lived in the end because given the vantage point, Anthony or Meadow would have seen any approaching hit and the last thing Tony would have heard was their screams.

4. Arrested Development: The fact that this show couldn’t get viewers and According to Jim lasted eight(!) seasons is why I have no faith in the U.S. viewing public. This show will always have a special place in  my heart if only for it spawning the “There’s Gotta Be a Better Way to Say That” (or “TGB”) game my friends and I play.

3. Freaks and Geeks: There’s a part of me that’s glad it only lasted one season.  They had one PERFECT season and if it had kept going, who knows if they would have been able to keep up such a high standard.

2. Lost: Surprised it’s not number one? I don’t know what I can say now that I haven’t written on this blog a hundred times. This is the only show in my lifetime that I have ever been obsessed with.  Sure, I love all these shows but it clear I am obsessed with Lost.  I don’t watch episodes with people anymore because a) I don’t want to be distracted by questions and b) I write notes during the episode to help with my blog which I’m pretty embarrassed about.

1. The Wire: Confession time. I didn’t start watching The Wire until season three because that’s when I finally had a DVR and could record it while watching other shows.  But the second season three ended, I went on a 48 hour bender watching every episode of seasons one and two. I love The Wire so much that just talking about it makes me want to start over and watch all five seasons over again. If you haven’t seen this show, it’s a crime. Screw the 00s, The Wire is one of the greatest shows EVER and I will argue that point with anyone who wants to lose.

Full list (in alphabetical order):

1. 24
2. 30 Rock
3. Angel*
4. Arrested Development
5. Battlestar Galatica (2004)
6. The Big Bang Theory
7. Big Love
8. Bones
9. Breaking Bad
10. Burn Notice
11. Californication
12. Chappelle’s Show
13. Chuck
14. Curb Your Enthusiasm
15. Damages
16. The Daily Show With Jon Stewart**
17. Deadwood
18. Dexter
19. Extras
20. Firefly
21. Flight of the Conchords
22. Freaks & Geeks*
23. Friday Night Lights
24. Futurama
25. Gossip Girl
26. Grey’s Anatomy
27. How I Met Your Mother
28. It’s Always Sunny in Philadelphia
29. Jackass
30. Justice League Unlimited
31. The L Word
32. Lost
33. Mad Men
34. Malcolm in the Middle
35. Nip/Tuck
36. The Office (BBC)
37. The Office (NBC)
38. Psych
39. Pushing Daisies
40. Rome
41. Scrubs
42. The Shield
43. Six Feet Under
44. Skins
45. The Sopranos*
46. Spaced*
47. The Venture Bros.
48. Veronica Mars
49. Weeds
50. The Wire

* Started in 1999 but ran through the 2000s
** The Daily Show started in 1996 but Jon Stewart didn’t become host until 1999 and that changed the entire complexity of the show.

oh grand rapids hardcore.  this band, damages, has been under my radar for too long…apparently they’ve been around since 2007 but i just learned about them recently!  i ran across them on last.fm and was looking at their pictures there and on their myspace page and realized i had seen them play at the last la dispute show i had been to (which was way too long ago).  anyway they have a link to get their ep for free on their myspace page so i downloaded and love it.  solid and heavy hardcore from right here in grand rapids, mi!  check them out!

damages blog, on myspace, on last.fm

So, you’re ready to take your business onto the Internet, and the most sensible way to do that is to register your well-known trademark as a domain name.  You try to do so, but learn that another party already has registered your trademark as a domain name.  Your brand may have been cybersquatted.  What are your options?

By the time you see the flags, it may be too late - cyberpirates have already made off with your valuable trademark.

“Cybersquatting” is a term that was coined to describe the bad faith registration and use of another party’s trademark as a domain name, with the intent to profit somehow from the good will of that trademark.  The term harkens back to the practice of illegal tenants “squatting” in derelict or condemned buildings.

A party injured by cybersquatting can sue under the Anticybersquatting Consumer Protection Act, or ACPA.  The ACPA became a part of the U.S. trademark statute, also known as the Lanham Act.

(I should point out here that trademark owners injured by cybersquatting also can proceed through arbitration under what are called the Uniform Domain-Name Dispute-Resolution Policy, commonly referred to as the “UDRP” approach.  I will be discussing the UDRP approach in an upcoming related article.  This approach can be quicker and significantly less expensive than proceeding under the ACPA, though it also offers a narrower range of remedies.)

The ACPA defines cybersquatting (which the statute refers to as “cyberpiracy”) as “registering, trafficking in, or using” a domain name that is identical or confusingly similar to another party’s distinctive trademark, “with a bad faith intent to profit from that mark.”  If the complaining party’s trademark is deemed a “famous” mark under the law, cybersquatting also occurs where the domain name would “dilute” the famous mark by tarnishing or blurring the public’s perception it.

Bear in mind that the domain name used by the cybersquatter need not be (and in fact, often is not) identical to the trademark at issue.  One practice that domain pirates quickly adopted is “typosquatting,” which involves registering common misspellings of a trademark as domain names.  When an unwary web-user accidentally types the misspelled trademark, he or she is taken to the pirate’s site.  The ACPA is broad enough to cover this practice, provided it can be shown that the misspelled domain name is confusingly similar to the plaintiff’s trademark.

The ACPA’s definition of cybersquatting creates several issues of proof for the would-be plaintiff, which I will discuss in an upcoming article.  For now, let’s examine the remedies that the ACPA provides for those injured by cybersquatting.

If a violation of the ACPA is found, the court can order the forfeiture or cancellation of the offending domain name, or its transfer to the trademark owner. The trademark owner also can recover up to three times his or her actual damages.  Actual damages include any profits the cybersquatter made through his use of the domain, along with any losses sustained by the trademark owner through the cybersquatters activities (such as lost sales or harm to the mark’s reputation.)

The trademark owner also has the option of foregoing actual damages and instead taking statutory damages (similar in nature to the copyright statutory damages I discussed in an earlier post) in the amount of $1,000 to $100,000 per domain name.  The statutory damages amount is left to the court’s discretion – presumably, the more odious the cybersquatter’s actions, the higher the award.

Finally, in suitable cases a successful plaintiff can get an injunction prohibiting further cybersquatting by the defendant, and in “exceptional cases,” can also recover attorney’s fees from the cybersquatter.

Where the cybersquatter is offshore and therefore not subject to the jurisdiction of U.S. courts, a provision of the ACPA allows the injured party to proceed “in rem,” or directly against the domain name itself.  In these cases the only remedy is that the domain will be awarded to the plaintiff.

If your trademark has been cybersquatted, the ACPA provides a range of legal options you can use against against the pirate.  My next article will discuss what your law suit must show, in order to get an award of the remedies provided by the ACPA.  Another related upcoming article will discuss the UDRP approach and evaluate the respective benefits of ACPA vs. UDRP.  Stay tuned for more discussion!

PHOTO COURTESY OF FLICKR USER REITVELD, UNDER THIS CREATIVE COMMONS LICENSE.

This is the first substantive post for #law tag.  It seemed appropriate to give a simple rundown of the agreement I had to consent to in order to start this blog.

The WordPress Terms of Service are simple.  [For a comparison, check out the Blogger Terms of Service which incorporate several other agreements and are written in much worse legalese].  Below, I will take you through the provisions, one by one:

The Gist: In this section, Automattic, Inc. (the company which runs WordPress.com) lays out what it thinks are the basics of the terms.  The section acts like an informal preamble and likely has little legal effect.  In case of a dispute over the other terms, it might be used to figure out the intent of the parties.  This excerpt, for example, makes it sound like the user retains all the copyrights to his content, though that issue isn’t addressed in the more formal provisions:

“Our service is designed to give you as much control and ownership over what goes on your blog as possible and encourage you to express yourself freely.”

The Terms of Service:  The first paragraph basically says that the terms apply to all of the services WordPress provides.  It also incorporates “all other operating rules, policies,… procedures” they may add later and their Privacy Policy.  The second paragraph requires users be at least 13 years old.

Your WordPress.com Account and Site. This section says that if someone gets your password or otherwise hacks your account, it is your responsibility.  It prohibits you from representing yourself as someone else, and allows WordPress to change anything that may cause them liability.  It also says Automattic is not liable for any of your actions.

Responsibility of Contributors. You are responsible for your content and any harm it may cause.  This means you have not stolen the content [from the copyright, patent, trademark holder, or your employer], you aren’t violating any other agreements by posting the content, and you’re not uploading viruses, spam, porn, libel, hate or fighting words.

This section is significant:

“You grant Automattic a world-wide, royalty-free, and non-exclusive license to reproduce, modify, adapt and publish the Content solely for the purpose of displaying, distributing and promoting your blog. If you delete Content, Automattic will use reasonable efforts to remove it from the Website, but you acknowledge that caching or references to the Content may not be made immediately unavailable.”

The section above basically says that WordPress can repurpose your content in any way, so long as it does so to promote your blog.  Even though you are giving up some usage rights, here will probably benefit you because WordPress probably has more reach than your network [at least thats true for me]. 

The section above also makes clear that anything you delete, might never be deleted.  This could have important implications if you ever post something libelous or infringing on a copyright, then later try to take it down.  Once it is on the internet, it might be there forever [i.e. in the Google Cache].

Fees and Payment. This is some basic information on the pay services you can sign up for and the way they will be billed.  Since I signed up for the free services only, I glossed over these parts.

Responsibility of Website Visitors/Content Posted on Other Websites.  These sections are interesting.  They addresses the reader, rather than the person signing up for the blog.  The reader of a WordPress blog never clicks to agree to these terms, so it’s hard to know their legal effect.  These sections basically say that Automattic hasn’t looked at all the WordPress content and linked content and readers should be cautious and report misuse of WordPress products.  Automattic also disclaims responsibility for content.

Copyright Infringement and DMCA Policy. Having already told its bloggers that they cannot, under the terms of use, infringe on ownership rights, this section tells readers to report bloggers if they suspect infringment.  It also gives WordPress the power to remove content, and suspend accounts.  [DON'T STEAL!]

Intellectual Property. Blogger’s have no right to Automattic property, including trademarks and graphics.  I hope I am not infringing by using the WordPress name over and over here.

Changes.  WordPress can change the agreement at any time.  The user has to check for updates.

Termination. WordPress can cut your access at any time, for any reason.  You can get out of the agreement by cancelling your account.  If you have pay services, they can only terminate for a material breach thats uncorrected after 30 days.

Disclaimer of Warranties. There are no warranties.  But there is a joke.  ”If you’re actually reading this, here’s a treat.”  I don’t know what, if any legal effect a joke inside a contract has.

Limitation of Liability. WordPress won’t pay for special or incidental damages, the cost of substitute products or services, the loss or corruption of data, any amounts over what the blogger paid to WordPress.   This might vary by jurisdiction.

General Representation and Warranty. You agree to follow the privacy policy, the Terms of Use, and all laws and you will not infringe on the intellectual property rights of any third party [AGAIN, don't steal].

Indemnification. “against any and all claims and expenses, including attorneys’ fees, arising out of your use of the Website, including but not limited to your violation of this Agreement.”  Pretty all-encompassing.

Miscellaneous. The agreement can only be ammended if you get a rep from Automattic to sign the revision, which seems unlikely.  There is a choice of laws provision, so if you do sue them, or they sue you, the court will apply California law.  And a choice of venue, so suits must take place in San Fransisco (unless the suit isn’t for money), but that is after a required arbitration.  You can transfer your rights under the contract as long as the person you transfer to accepts the agreement.  Automattic can transfer without any conditions.

Whew!  All done.  There are a lot of potential issues here, but I will leave those for another day.  Here, the purpose was just to explain the terms, not to analyze them.  Interestingly the WordPress terms are apparently enforced by an automated program which can lead to some headaches.

[Just a note, I use WordPress and Automattic interchangeably, though I probably shouldn't have.  Automattic is the company with whom the blogger is entering into an agreement]

In dieser Rubrik wird es, ähnlich wie im letzten Jahr, wieder meine Eindrücke zu den Serien geben, die ich in den letzten rund 12-15 Monaten gesehen habe. Meine Einschätzungen sind subjektiv, aber unumstößlich und können sich auch durchaus mal auf Serienstaffeln beziehen, die schon etwas älter sind. In alphabetischer Reihenfolge wird es hier nach und nach kurze Kommentare zu jeder dieser Serien geben.

Bisher besprochen:

Die “Misfits”
Being Erica
Better Off Ted
The Big Bang Theory
Breaking Bad
Burn Notice
Californication
Chuck
Crusoe

=========================================

Damages

Eines der wirklich exzellenten Neustarts im Jahr 2007 war mit Sicherheit das Glenn Close-Vehikel “Damages” des Cable Networks FX über eine junge Anwältin (Rose Byrne), die in einen Sog von Gewalt, Verschwörungen und Intrigen gerät, als sie einen Job bei der renommierten Kanzlei von Patti Hewes (Close) annimmt. Wirklich hervorragendes Drama, fesselnd inszeniert – allerdings auch keine ganz leichte Kost.
In Season 2 hat mich die Serie phasenweise nicht mehr ganz so begeistern können, trotz erneutem Staraufgebot was die Darstellerriege angeht: Zu Byrne und Close, sowie weiterhin Ted Danson, gesellen sich noch so illustre Namen wie Timothy Olyphant, Marcia Gay Harden und William Hurt.
Dennoch ist es nach wie vor eine wirklich hervorragende Serie, die sich weit über dem Schnitt befindet und wenig mit “normalem” Fernsehniveau zu tun hat, sondern definitiv einer Ausstrahlung auf der großen Leinwand würdig wäre – wenn man das denn noch so sehen will.

Meine Wertung: 9 von 10 Gabeln [für Season 2]

Dexter

Auch bei Dexter muss ich in diesem Fall sagen, dass ich etwas mehr Probleme mit der betreffenden Staffel (in diesem Fall Nummero 3) hatte – was diesmal sogar zu einer Herabstufung führt. Von 10 auf 9 ist allerdings mit Sicherheit noch immer ein absolut hohes Niveau, denn mit der Einführung von Miguel Prado (großartig: Jimmy Smits) gelingt den Machern auch in dieser Season wieder ein sehr beeindruckender Schachzug, um Dexter in neue Konflikte und Situationen zu stürzen. Etwas schwächer hingegen, der ganze Story-Arc um Debra und ihr Beziehungsgeflecht zu Anton und Quinn.

Meine Wertung: 9 von 10 Gabeln [für Season 3]

Thanks for reading my blog.  I try hard to respond to every email I receive, but I receive more and more every week.  It is getting hard to keep up.  I started a forum that will address tenant debt and tenant screening issues to help answer the commonly asked questions.  Please help me get the forum off the ground by registering and posting your questions.

The forum url is: www.theinformedlandlord.com

Thanks,

Bill Gray

Bill@thelandlorddoctor.com

www.thelandlordoctor.com

So Donny took it — mirror ball and all! He’s the Dancing With The Stars champ and was said to be “numb”, while Mya, about whom they said the trophy “was hers to lose” on account of her “astonishing dance scores” was reportedly “disappointed”.  Well bravo,  Donny, and my guess is Mya — especially given her stellar work on the dance floor this year — will have many happy days (and performances to come).  Same with Kelly O., who still has the vote (and adoration) of millions.  Now…let’s move into some holiday fare.  With Thanksgiving upon us, everyone’s probably going to be spending lots of time at the table or in front of the TV.  And so now let’s take a trip over to the basic cable realm, where fans of USA’s Burn Notice have good reason to be delighted — the show, starring Jeffrey Donovan and Gabrielle Anwar, has  been picked up for a fourth season.  Which got me thinking about basic cable in general, and how much good stuff is seemingly right under our noses.  And while we spend a great deal of time talking about the premium cable shows like Weeds, Dexter, Nurse Jackie, Entourage, Big Love, Californication etc…today I’d love to know where you all weigh in on some of  basic cable’s original series. Now since there are several of them that people love, I’m just going to throw out a few shows to see how everyone feels about that netherworld between networks and cable. You’ll notice I’m leaving out Breaking Bad, Monk White Collar and others — but that’s just because we’ll be talking about them next week.  So here goes…voice your choice in today’s featured poll and tell us which of these cable original series is your favorite? (and while you’re at it, have a fantastic Thanksgiving!)

1) Mad Men

2) Burn Notice

3) Damages

4) The Closer

On a roll. Like buttah!

Louis C.K. is on fire this year. Still rolling through his most prolific period of writing and performing, he’s recorded a two-disc version of his 2009 show Hilarious earlier this year. That’s coming out soon even though people are still discovering 2008’s Chewed Up and 2007’s Shameless. That’s three solid new shows in three years while managing to juggle all his other activities.

And as previously announced, Louis signed a deal for a new show on the FX network. It’s never going to be as permissive as pay cable, where Louis was able to float scenes like this classic on Lucky Louie. But damned if FX hasn’t been pushing the boundaries of basic cable as far as they can stretch with Sons of Anarchy and It’s Always Sunny in Philadelphia. (FX has to be my favorite network right now when you factor in Damages and six seasons of Rescue Me. Even The League is growing on me a bit, and the upcoming Archer looks great!).

And today, Louis launched his own plug for the show. This is just too funny. Warning: NSFW (of course).

HBO never should have cancelled Lucky Louie. But now that Louis C.K. is lucky enough to have another shot, here’s hoping FX has bigger stones than HBO did. I can’t imagine the new show having a better cast than he did before, but he has the golden touch right now and I would not bet against him.Watch for Louie in the Spring of 2010 on FX.

Three Men and a Babe

Russell v. Wells Fargo and Co.

This case was before the Court on the parties’ partial Cross Motions for Summary Judgment, regarding the methodology to be applied to determine damages where, as here, an employee is misclassified and paid solely their weekly salary, despite the fact they work overtime hours.  The Plaintiffs asserted that they were due the default time and a half (1.5x) under the FLSA, but the Defendant argued that Plaintiffs’ damages should be calculated under the exception to the default rule, referred to as the Fluctuating Workweek (FWW), whereby they would receive so-called half-time in lieu of time and a half.  In a detailed well-reasoned decision, the Court agreed with the Plaintiffs, and determined that Plaintiffs were due time and a half for all overtime hours worked, because Defendant could not meet several of the elements required for the application of the FWW.

The Court framed the following 3 issues for resolution on the Motions:

“1. Whether it is possible to have the required “clear mutual understanding” necessary to compute damages by the fluctuating workweek method (FWW method) in an exempt/non-exempt misclassification case;

2. Whether the concurrent payment of overtime pay is a required element to compute unpaid overtime by the FWW method, such that the FWW method of overtime calculation cannot be used in an exempt/non-exempt misclassification case; and

3. Whether damages (if any) on the FLSA overtime claim of an opt-in plaintiff who resides in California or Connecticut can be computed by the FWW method.”

Denying Defendant’s Motion seeking to apply the FWW, and granting Plaintiffs’ Motion to apply the time and a half default standard, for calculating Plaintiffs’ damages, the Court explained:

“Defendants argue that the FWW method can be used to calculate overtime pay retroactively for the purposes of determining damages in an exempt misclassification case. They assert that the FWW method is available when the employer and employee have a clear mutual understanding that a fixed salary will compensate the employee for all hours worked in a week, including those in excess of the FLSA’s forty-hour maximum, even if the “understanding” is based on the employer’s erroneous premise that the employee is exempt and thus not entitled to overtime pay. Defendants’ argument is untenable. The FWW method cannot be used to calculate overtime pay retroactively in a misclassification case.

As noted above, section 778.114 contains legal prerequisites, which employers must first satisfy to use the discounted overtime rate available through the FWW method. These prerequisites include (1) a clear mutual understanding that a fixed salary will be paid for fluctuating hours, apart from overtime premiums; and (2) the contemporaneous payment of overtime premiums.

When an employee is not exempt and is paid a fixed salary for fluctuating hours, the employer can satisfy these prerequisites. The employer and employee must have a clear mutual understanding of the fixed salary which, by law, must include an understanding that an overtime premium will be paid for any hours worked over the forty-hour-per-week maximum. Because both parties understand that overtime hours will be compensated, overtime pay would be provided contemporaneously.

When an employee is treated as exempt from being paid for overtime work, there is neither a clear mutual understanding that overtime will be paid nor a contemporaneous payment of overtime. Thus, when an employee is erroneously classified as exempt and illegally not being paid overtime, neither of these legal prerequisites for use of the FWW method is satisfied.

First, an effective clear mutual understanding is absent in misclassification cases. Defendants assert that an employer could have a clear mutual understanding with its employees that the employees would be paid a flat weekly rate for fluctuating hours, including those hours worked in excess of forty, and would not receive overtime pay. Defendants essentially argue that misclassified employees have implicitly agreed not to receive their FLSA entitlement to overtime pay. This would be illegal. Employees cannot agree to waive their right to overtime pay. See Barrentine v. Arkansas-Best Freight Sys., Inc., 450 U.S. 728, 739-40 (1981).

Second, because the employees were erroneously classified as exempt, overtime compensation was not provided contemporaneously. Employers cannot satisfy this requirement, after having been found to violate section 207, by claiming that they had intended to pay overtime; such an after-the-fact provision of overtime compensation was rejected by the Supreme Court in Overnight Motor. See 316 U .S. at 581 (rejecting the employer’s attempt to use FWW method where there was “no provision for additional pay in the event the hours worked required minimum compensation greater than the fixed wage”). As stated above, 29 C.F.R. § 778.114(c) requires contemporaneous overtime pay: the FWW method cannot be used “where all the facts indicate that an employee is being paid for his overtime hours at a rate no greater than that which he receives for nonovertime hours.” 29 C.F.R. § 778.114(c). In a misclassification case, because employees have not been paid overtime premiums, they are compensated for those hours worked more than forty at a rate not greater than the regular rate.

If Defendants’ position were adopted, an employer, after being held liable for FLSA violations, would be able unilaterally to choose to pay employees their unpaid overtime premium under the more employer-friendly of the two calculation methods. Given the remedial purpose of the FLSA, it would be incongruous to allow employees, who have been illegally deprived of overtime pay, to be shortchanged further by an employer who opts for the discount accommodation intended for a different situation.

In making its decision here, the Court is “mindful of the directive that the [FLSA] is to be liberally construed to apply to the furthest reaches consistent with Congressional direction.” Klem v. County of Santa Clara, 208 F.3d 1085, 1089 (9th Cir.2000) (quoting Biggs v. Wilson, 1 F.3d 1537, 1539 (9th Cir.1993)) (quotation marks and alterations omitted).

The Ninth Circuit has not directly addressed the question of whether the FWW method may be used retroactively to compensate employees who have been misclassified as exempt.^FN4 In Oliver v.. Mercy Medical Center, the court concluded that the FWW method could not be used to calculate liquidated damages pursuant to 29 U.S .C. § 216, in part because the plaintiff-employee and the defendant-employer did not agree to a fixed salary covering all hours worked in a week. See 695 F.2d 379, 381 (9th Cir.1982). Oliver confirms that an employer and employee must, at the least, agree to a fixed salary for fluctuating hours. But its holding does not address whether the FWW method can be applied retrospectively to calculate overtime pay in a misclassification case. To the extent the holding is silent on this point, there is no binding Ninth Circuit precedent.

In Bailey v. County of Georgetown, 94 F.3d 152 (4th Cir.1996), non-exempt employees challenged their employer’s use of the FWW method to calculate their overtime pay. Instead of compensating overtime at the time-and-a-half rate, the employer opted for the FWW method and paid a one-half time premium based on fluctuating hours. Id. at 153-54. The employees claimed that this was improper, arguing that the FWW method could only apply if it was shown that they “clearly understood the manner in which their overtime pay was being calculated under the plan.” Id. at 154. The court disagreed. The Fourth Circuit determined that neither the plain language of the FLSA nor section 778.114 required an understanding on how overtime would be calculated; according to the court, all that section 778.114 requires is a clear mutual understanding of a fixed salary for fluctuating hours. Id. at 156-57. The court provided no additional analysis. And because the case involved non-exempt employees who were paid overtime, the court had no occasion to address whether contemporaneous overtime pay was a requirement.

Thus, Bailey did not address remedial payment to misclassified employees. Nonetheless, the First and Tenth Circuits applied its rule to misclassification cases. See, e.g., Clements v. Serco, Inc., 530 F.3d 1224 (10th Cir.2008); Valerio v. Putnam Associates, 173 F.3d 35 (1st Cir.1999). In Clements and Valerio, the courts held that the FWW method can be used to calculate overtime pay retroactively. But Clements and Valerio merely cite Bailey. Neither provides a substantive analysis or explains why Bailey should apply in the misclassification context. See Clements, 530 F.3d at 1230; Valerio, 173 F.3d at 40. The Fourth Circuit similarly applied Bailey’s interpretation of section 778.114 in the misclassification context without analysis. See Roy v. County of Lexington, South Carolina, 141 F.3d 533, 547 (4th Cir.1998). In Blackmon v. Brookshire Grocery Company, the Fifth Circuit applied the FWW method in a misclassification case. 835 F.2d 1135, 1138 (5th Cir.1988). Blackmon, like the other cases above, offers no explanation. See 835 F.2d at 1138-39.

District courts outside these circuits have held that the FWW method cannot be used in misclassification cases. In Rainey v. American Forest & Paper Association, the court analyzed section 778.114 and found that its requirements include a clear mutual understanding that the employee is entitled to overtime compensation and contemporaneous payment of overtime premiums. 26 F.Supp.2d 82, 99-102 (D.D.C.1998); see also Hunter v. Sprint Corp., 453 F.Supp.2d 44, 58-62 (D.D.C.2006) (discussing application of the FWW method in a misclassification case). Other courts have rejected the use of the FWW method in misclassification cases because there is no contemporaneous payment of overtime compensation in such cases. See, e.g., Cowan v. Treetop Enters., 163 F.Supp.2d 930, 941 (M.D.Tenn.2001) (citing Rainey ); Scott v. OTS Inc., 2006 WL 870369, *12 (N.D.Ga.) (citing Rainey ).

Defendants reject many of the other cases cited by Plaintiffs because “they are not in the exemption misclassification context.” Defs.’ Reply at 12. However, Bailey, the case relied upon by most of the cases cited by Defendants, was likewise not in the exemption misclassification context. Thus, Defendants’ argument undermines their reliance on Valerio, Clements and Roy. Accordingly, the Court does not follow Bailey and its progeny: Bailey is not on point, and the cases that rely on it are not persuasive.

The Court is similarly unpersuaded by the DOL’s January 14 letter. Generally, courts must defer to the expertise of an agency in interpreting statutes that Congress charged to administer. See Cent. Ariz. Water Conservation Dist. v. EPA, 990 F.2d 1531, 1539-40 (9th Cir.1993) (citing Chevron U.S.A., Inc. v. Nat’l Res. Def. Council, 467 U.S. 837 (1984)). However, opinion letters do not warrant such deference; under Skidmore v. Swift, 323 U.S. 134, 140 (1944), they are to be accorded respect, not deference. An opinion letter is entitled to respect to the extent that it has the “power to persuade.” See Christensen v. Harris County, 529 U.S. 576, 587 (2000).

The opinion letter does not explain why the FWW method should be applied retrospectively, despite the plain language of the DOL’s long-standing interpretation of the FLSA contained in § 778.114. The letter relies solely upon Clements and Valerio to explain the DOL’s new position, and it goes no further to detail why the DOL was departing from its forty-year-old interpretation. Given the DOL’s significant change in course, this explanation is insufficient. Further, the DOL’s prior abandoned effort to revise § 778.114(a) through notice-and-comment rulemaking, and the timing of the opinion letter’s release-less than one week before a change in the administration-detract from its persuasiveness. Deferring to the letter “would permit the agency, under the guise of interpreting a regulation, to create de facto a new regulation.” Christensen, 529 U.S. at 588. The DOL cannot use the letter to make a substantive regulatory change that would have the force of law. See id. at 587. The letter lacks thoroughness in its explanation and consistency with the DOL’s earlier FLSA interpretation. The Court is not persuaded by it. See id. (citing Skidmore, 323 U.S. at 140).

Thus, the background and policy of the FLSA, the Supreme Court’s decision in Overnight Motor and the DOL’s 1968 interpretive rules demonstrate that the FWW method cannot be used to calculate overtime pay retroactively for the purposes of determining damages under the FLSA in a misclassification case. Section 778.114, which the DOL promulgated in light of Overnight Motor, provides legal prerequisites that cannot be satisfied in a misclassification case.

CONCLUSION

For the foregoing reasons, the Court interprets § 778.114 to restrict application of the FWW method to calculate overtime pay to situations where (1) there is a clear mutual understanding between an employer and employee that the employee will be paid a fixed salary for fluctuating weekly hours but nonetheless receive overtime premiums and (2) overtime is compensated contemporaneously. The Court therefore DENIES Defendants’ motion for partial summary judgment and GRANTS Plaintiffs’ cross-motion for partial summary judgment on the first and second stipulated legal issues. Based upon these holdings, the Court need not decide the third stipulated issue. Accordingly, the Court DENIES as moot Defendants’ and Plaintiffs’ motions for partial summary judgment on the third stipulated legal issue.”

LOVIN’ LAS VEGAS: Don’t know why I thought that Lily Tomlin and Sin City were not a natural fit. Turns out they are. La Tomlin premiered her new

TOMLIN & WAGNER: Viva Las Vegas

one-woman show, Not Playing With A Full Deck, at the MGM Grand, and reportedly loves Las Vegas! Lily’s partner and personal muse, the unabashedly brilliant humourist Jane Wagner, is the mighty pen behind her new show as well as such previous Tomlin megahits as The Search For Signs Of Intelligent Life In The Universe and Appearing Nitely. Lily’s new show is a mix of Greatest Hits – the characters her fans still can’t get enough of, like Ernestine and Edith Ann – and new characters, and

SHORT: Damages control

new technology. Tomlin’s new show ‘try-out’ played in MGM’s Hollywood Theater, which seats about 2,000 people at each performance. And when Tomlin isn’t hanging out with her Big Business co-star and Caesars Palace headliner Bette Midler (The Showgirl Must Go On) or trying to coax Jane (“it’s come down to begging, really,”) into writing a new Broadway show for her, she’s commuting to New York to shoot her scenes in the new season of Damages with Glenn Close. In it she plays the matriarch of a powerful family determined to destroy shady legal eagle Close. Assisting Lily in this mission are Martin Short as her high-powered attorney and Campbell Scott as her son. And yes, she confesses, she and Marty did misbehave one day on the set, when

MIDLER: The show must go ... off

she read her lines as Ernestine and he did his as Ed Grimley. “But never when the cameras are rolling!”

THE SHOWGIRL MUST GO OFF: P.S. for Vegas-bound Bette Midler fans: Your heroine ends her two-year residency at The Colloseum – aka The House That Céline Built – on January 31. Says Bette: “These legs have had such a great run in the desert, it may be time to haul them to places with more humidity and fewer slot machines.”

GET OUT YOUR HANDKERCHIEFS: Yes, it’s true, the latest YouTube sensation is a recent audition for Simon Cowell’s British talent show The X Factor. The singer is a 40-year-old cabinet-maker named Daryl Markham. Markham has his own website now, and is now a household

MARKHAM: YouTube sensation

name for millions of people all over the world. But can he sing? You be the judge. To see his now-historic audition, just click here.

NO BIZ LKE SHOW BIZ: Leave it to Reg Hartt to find a copy of the sumptuous MGM musical Kiss Me Kate, with Kathryn Grayson, Howard Keel and young hoofers Bob Fosse & Tommy Rall competing for Ann Miller’s machine-gun taps., in — wait for it — 3D, its screen original format. Cineaste extraordinare Hartt unspools the classic Cole Porter musical this Sunday and next at 5 pm at his Cineforum HQ at Bathurst & College. Adds Reg: “Bring your own popcorn and we will zap it for you.”

WILLIAMS: ReelWorld decade

Hmmmm, wonder if Stratford’s Kiss Me Kate star Juan Chiorian, now on stage at the Factory Theatre in The Madonna Painter, has ever seen this version? … fan faves Colin Mochrie & Deb McGrath guest with Ron James tonight at 8 pm on CBC Television …  the Kate Rogers Band performs live tomorrow morning on CBC Radio One’s GO! Show. “Tickets are free and everyone is welcome!” sez Ms Rogers … speaking of tickets, you can still snag some for this weekend’s performances of the National Ballet’s spectacular Sleeping Beauty revival before it closes Sunday .. and can you believe that Tonya Lee Williams’ ReelWorld Film Festival, the little movie marathon that grew, celebrates its 10th anniversary next spring? Ms Williams, of course, is currently stationed in Washington, D.C. — on screen, at least — in The Border. And BTW, the ReelWorld call for submissions has already started. So if you have a feature, documentary, short, music video or animation from the Aboriginal, Asian, Black, Latino, Middle Eastern, South Asian or other multi-racial community, click here and fill out the submissions form.

Happy weekend!

-/-

http://reelworld.ca/

Fall is a critical time to do a few preventive things to prevent water damage in your home.

1. First and foremost, turn off your exterior faucets valves from the inside, open the faucet to drain the water and remove garden hoses. If these valves are left open the water inside the pipe near the exterior can freeze and expand causing the pipe to burst, when it warms above freezing the ice will melt and you will have water running into the interior of your home until it is turned off. Even if you have ‘frost-proof’ faucets it is still important to turn them off from inside of your home. They can freeze and burst, usually in the valve itself, so you will not know this has happened until you turn the faucet on in the spring. If you do not have an interior shut off valve we recommend that you place an insulated cover over the faucet which can be purchased at your local hardware store.
2. Clean Leaves and Debris from your Gutters.  Once the leaves have fallen, clean your gutters and downspouts. Plugged gutters and downspouts can cause water to seep in next to the foundation and cause basement flooding. Many insurance companies do not cover water damage from seepage. Make sure your downspouts run at least six feet from the foundation, and your landscaping is slopped away from your foundation for at least six feet.
3. Clean you sump pump pit. Once the ground has frozen, remove your sump pump and clean the pit it sits in. Sand and silt will accumulate in the bottom of the pit and can reduce the life of the pump. Replace the pump and check for proper operation of the float. When water is flowing in the pit in the spring is not a good time to find it is malfunctioning.

We hope these helpful tips will prevent you from finding a flood in your home.  If you do have a Water Damage emergency call our 24 hour Water and Fire Damage hotline at 952-930-6853 for an immediate response.

Perhaps in no other area of personal injury law, can a swimming pool accident attorney be of more importance than in ensuring that a client involved in a near drowning seeks immediate medical attention.

If you or a loved one have been involved in a swimming pool accident, visit our law firm website at http://www.SebastianGibsonLaw.com for more information and call us at any of the numbers easily found on our website.

A condition not often discussed is near-drowning or dry-drowning. This can occur hours after a person has nearly suffocated in water and with a build-up of water in their lungs, they can die after walking around and talking and performing other activities. Seek medical attention for yourself and any member of your family involved in a near drowning, even if you feel fine.

If you or a member of your family has been seriously injured in a swimming pool accident in California, you may also be wondering what steps you should take to provide care or to seek compensation for your injuries or loss.

Drownings don’t just occur to kids and they don’t happen just in swimming pools. A very small amount of water can be fatal to a small child. And an adult or a child who has had a near-drowning can still suffer brain damage, respiratory damage or death hours later.

Depending on the research you read, or the ages involved, drowning is from the fourth to the first cause of deaths to children. For children under the age of 14, drowning in swimming pools is the leading cause of death. Other studies put drowning fourth after guns, car accidents and burns for the leading cause of unnatural death of all children. The fact is, more people die in swimming pool drownings than any other type of activity.

A child however can drown in a beer cooler, a fish pond, another water feature, Jacuzzi, toilet, water bowl, stream, river, drain and any other place where their head can be in the water.
Because of their disproportionate weight of their heads, a toddler can fall into water and find it difficult to lift their head or their body so they can breathe.

For every child that drowns, five are left with permanent brain damage or damage to their respiratory system.

So what can be done to prevent drownings? Vigilance is the word, whenever children are around water. Keep gates to pools closed and locked, and whenever possible keep covers on pools. Many people are unaware of electronic splash sensors that can be employed to sound an alarm whenever a splash is detected. And take a CPR course or take a refresher course.

If you or another member of your family have been involved in a swimming pool accident, visit our law firm website at http://www.SebastianGibsonLaw.com and call the law firm of R. Sebastian Gibson immediately for advice.

In 1974, Congress enacted RESPA, the Real Estate Settlement Procedures Act primarily to address abusive practices, promote greater understanding to home buyers and to prohibit practices such as kickbacks or referral fees that result in higher costs.

If you have a real estate matter involving RESPA, visit our law firm website at http://www.SebastianGibsonLaw.com for more information and call us at any of the numbers easily found on our website.

Efforts began in earnest in 2008 to reform RESPA and on November 17, 2008, HUD published its new 341-page RESPA final rule. Though published in the Federal Register, there is a one year implementation period and mandatory compliance begins January 1, 2010.

RESPA was created in the first place partly because various types of entities involved in the purchase and sale of real estate such as Realtors, lenders, construction companies, and title insurance companies were often engaged in providing undisclosed kickbacks to each other, thereby causing the costs of real estate transactions to become inflated.

RESPA was designed to prevent kickbacks not just in California, one of the states with the greatest number of foreclosures in this current economic crisis, but throughout the U.S. But RESPA has been criticized for failing to prevent what it was meant to prevent. Lenders and others in the real estate industry in California, for instance, still see customers go with the default service providers associated with a lender or Realtor, even though the documents the home buyer signs explicitly state they can choose any service provider they wanted.

However, Section 8 of RESPA quite explicitly and forcefully prohibits a person from giving or accepting a fee, kickback or anything of value for referrals of settlement service businesses relating to a federally regulated mortgage loan. It also prohibits fee-splitting or a person from giving or accepting any part of a charge for services that are not performed.

Violations of Section 8’s kickback, referral fee and unearned fee provisions subject a person who violates RESPA to criminal and civil penalties. In criminal cases, a person in violation of Section 8 cam be fined up to $10,000 and imprisoned for up to one year. In a civil lawsuit, a person in violation of Section 8 can be liable to the person who was charged for a settlement service an amount equal to three times the amount of the charge paid by the person for the service, and for the person’s attorneys fees. Individuals have one year to file a complaint to enforce violations of Section 8 in federal court in the district the property is located or where the violation occurred.

Without oversimplifying Section 8, a real estate agent in California or anywhere in the U.S. may not offer nor may a real estate agent accept anything of value for referring business to a settlement provider such as a mortgage banker, mortgage lender or title company or to a friend who refers the agent business. Realtor to Realtor referrals are excluded and there is a contract for such referrals that is enforceable. It is probably still acceptable to take such contacts out to dinner, discuss business and thank them for their support, but that is about as far as one can go.

With all that has happened in the mortgage industry in California and throughout the U.S. that has led to the current economic recession (and some would call it a depression), anyone criticizing the kickback and fee-splitting prohibitions should remember the excesses in lending to unqualified home buyers that led us to the situation the financial industry now finds itself.

Entities who are found to have formed sham joint ventures for the purpose of evading the Section 8 prohibitions risk potentially millions of dollars in damages and attorney fees as well as criminal charges and imprisonment.

If you believe you have been the victim of a violation of RESPA in California and have been improperly charged as a result of such a violation, or if you are in the real estate industry and are facing RESPA litigation or need advice regarding RESPA, we recommend that you visit our law firm website at http://www.SebastianGibsonLaw.com and call us to set up a consultation with the law firm of R. Sebastian Gibson.

California Real Estate Attorneys have never seen more fraud in the real estate industry than there has recently been in this economic downturn. There has been loan modification fraud on a huge scale, loan fraud, RESPA violations and individual acts of fraud in the sale and purchase of real estate throughout California.

If you have a real estate matter or a contract that needs review, visit our law firm website at http://www.SebastianGibsonLaw.com for more information and call us at any of the numbers easily found on our website.

It doesn’t matter where you live, if you eventually ever buy or sell real estate again, which many of us have begun to think will never happen again, though it probably will, you need to know what makes a real estate contract legal.

A real estate contract can be written, oral, or implied. But in real estate law, only some real estate contracts can be oral such as commission sharing agreements, while almost every other type of real estate contract must be in writing.

The Statute of Frauds in California requires these contracts to be in writing: leases for more than a year, commission agreements between principals and real estate licensees, and contracts for the sale of real estate.

The required elements of all contracts in California are: the capacity of the parties to enter into the contract (not minors, not people of unsound mind, not intoxicated or drugged parties), an offer containing all the material terms, acceptance of that offer, communication of the acceptance, mutuality of consent, and consideration (anything of legal value).

While in many real estate contracts, a good faith deposit is made, this deposit is not required for there to be a valid contract.

In real estate law, there are common situations that arise which don’t arise as often in other situations. For instance, real estate offers often have expiration dates. Options are used frequently by builders in land contracts. Counter-offers can be numerous.

Additionally, in real estate situations, and especially in bad economic times, parties try to avoid being bound by contracts more often. Grounds for avoidance include duress, undue influence, fraud or misrepresentation, and mistake.

A party can be defrauded in the inducement to sign the contract for instance by failing to disclose material facts. A party can also be defrauded in the inception by making a person believe they are signing something else all together. When obtaining celebrity autographs, it’s therefore not a good idea to try to get them to sign for your meal at the same restaurant.

A party can also illegally be induced into breaching a contract. This tort requires proof of the following: a valid contract with another, knowledge of the contract, intent to induce a breach, a breach, improper or unjust conduct in inducing the breach, and damages.

One can also be sued for interference with an existing contractual relationship. For this type of lawsuit to be successful you must prove the existing valid contract, knowledge, intentional acts to interfere with the contract, actual interference and damages.

Remedies for breach of contracts include damages, specific performance of the contract despite its breach or rescission of the contract. Real estate contracts often provide for liquidated damages, i.e. a specific amount of damages to be paid, in the event of a breach.

While in general there are no punitive or emotional damages available for breach of a contract, there are exceptions. And if the contract provides that the prevailing party is entitled to attorney fees and costs, the losing party will be responsible for both his or her own attorney fees and costs as well as the other party’s attorney fees and costs.

If you have a real estate contract or agreement that needs to be reviewed or need the assistance of a California real estate lawyer and broker in a real estate dispute, visit our law firm website at http://www.SebastianGibsonLaw.com and call the law firm of R. Sebastian Gibson today.

Jones Act and Maritime Lawyers know that injuries to seamen, dock workers and workers on offshore oil rigs in California are common to workers who work out of the busiest ports in California including San Diego, Long Beach, San Pedro, and Ventura, and they can occur when such workers least expect it and many times when they are far from home.

If you’ve been injured on a vessel on the dock or in any maritime situation, visit our law firm website at http://www.SebastianGibsonLaw.com for more information and call us at any of the numbers easily found on our website.

Maritime jobs are some of the riskiest in the world. Chains whip across the decks of ships, seamen lose limbs and can find themselves in ports receiving less than optimum medical treatment after being days away when the injury occurs.

The Jones Act covers those injured on a vessel while on navigable waters but it also covers workers on oil rigs, workers on barges and workers even in transport to their vessel. The word, “vessel” includes a vast array of boats, ships, tankers, freighters, cruise ships, dredges and even helicopters.

As a result, seamen injured aboard ship have three avenues of recovery: The Jones Act, the doctrine of seaworthiness and the principle of maintenance and cure.

The Jones Act provides injured seamen with compensation for the negligence of others while employed on a vessel or offshore oil rig. That compensation includes damages for future medical treatment, past and future wage loss and pain and suffering.

Under the Jones Act, a seaman must prove the negligence of the vessel or oil rig’s owners, employees, or operators. Negligence can also be proven by showing defects in the vessel’s equipment or gear, or in the vessel itself.

The owner of a vessel also owes an absolute duty to provide and maintain a seaworthy vessel. It must be equipped with safe equipment, and be a safe place to work.

Upon being injured, a seaman has a right to benefits referred to as “maintenance and cure.” The maintenance part of this term refers to a daily amount for food and shelter. The cure part of this term refers to medical treatment. Treatment is provided until the seaman reaches his or her maximum medical improvement.

In the event of death, the spouse and family members of the deceased seaman are entitled to an award for any economic losses they have suffered by reason of the seaman’s death in addition to any pain and suffering the seaman may have suffered up until the time of his death.

Jones Act cases are significantly different from personal injury or workers compensation cases. An attorney without Jones Act experience is likely to be a fish out of sea until he or she has handled a few of these cases.

Not every worker aboard a ship is considered a seaman. Non-seamen workers injured over navigable waters are covered under the Longshoremen’s and Harbor Workers’ Compensation Act.

Even if you are not a seaman and have been injured while employed in any maritime activity on or near the water, you should talk to a maritime injury attorney to ensure you receive the compensation you are due.

If you’ve been injured in connection with a maritime, dock or boat accident, visit our law firm website at http://www.SebastianGibsonLaw.com and call the law offices of Sebastian Gibson today.

What most people want to know from a California contract lawyer is whether they or the other party have broken that agreement and whether they are obligated to pay for breaking that contract or agreement in California.

If you have an issue with a contract in California visit our law firm website at http://www.sebastiangibsonlaw.com for more information and call us at any of the numbers easily found on our website.

If you’re in business in California and even if you’re not, you already know what a contract is. It’s that thing you signed when you or another party agreed to pay something in return for something else.

In order to determine the answer to who’s entitled to what, a contract attorney in California must read the contract and learn what happened from the client. If the contract is in writing, for the most part, the written terms of the contract determine the answers to those questions. But it is still usually necessary for a California contract lawyer to advise a client how the law looks at such terms.

If the agreement was not in writing, then the client’s statements and those made by the other party when the agreement was made become of more significance. In other cases, the question of whether a contract exists or not, may depend on whether there was an offer and an acceptance of that offer.

A contract can also be implied by the conduct of the parties. However, implied contracts and oral contracts are usually the most difficult types of contracts to prove. A written contract is the easiest, and this is why contract attorneys advise everyone to always put their agreements into writing.

In determining whether there has been a breach of the contract under California contract law, or in other words, whether one of the parties broke their agreement, it is required to determine if one of the parties performed their promises under the contract agreement.

For one party to obtain damages from the other, the performing party must have performed his or her obligations under the contract, or there must have been what the law allows as a valid excuse to his or her performance. The performing party also may allege that the other party waived the performing party’s performance. However, a party claiming that his or her performance was excused or waived has a much more difficult burden of proof, in most cases, to be successful and obtain damages

The crux of a breach of contract claim is the other party’s breach. The breach may be a failure to pay money, or the failure to perform some service, deliver goods or take some other action.

Since the object of a claim for breach of contract is the damages suffered by a party, the person claiming he or she was wronged, must have also suffered some financial damages.

The next question for clients is what are they entitled as a result of the breach of the contract by the other party.

The general rule is that the injured party is entitled to the benefits he or she would have received if the contract had been performed. This is generally the amount that would compensate the aggrieved party for all the detriment he or she suffered as a result of the breach.

That doesn’t mean, however, you can claim emotional stress, punitive damages, try to inflate your damages unfairly, or obtain damages which cannot be clearly ascertained.

However, an injured party may obtain damages for lost profits, for his or her expenditures, for interest, and if the contract provided for them, even for attorneys’ fees and costs and again, if the contract provides for a specific amount of damages, for these “liquidated” damages.

Each case rests on its own merits and there are different ways to plead and prove a person’s damages. Some remedies under the law are exclusive while in other cases, a client must choose which damages he or she would prefer to obtain, for example specific performance of the contract. On the other hand, a party, may have the option of rescinding the contract (the remedy of rescission) when it has been breached by the other party, and seek restitution of the price he or she paid, in other words, his or her consideration.

While the terms of a written contract are extremely important where there is one, there is much more to contract law than simply reading a contract or writing down simple terms such as “if I do this, you agree to pay me that.” If you want the right to be paid for your attorney’s fees and costs in the event of a breach, for instance, some additional language must be added to the contract.

In California, a prevailing party in a contract dispute is entitled to attorneys’ fees only if the contract provides for this. If the contract is silent, each party is responsible for their own attorneys’ fees and costs. This is often crucial to a decision by a client of whether or not to go forward with litigation.

There are also many other issues a California contract lawyer must analyze in a contract case, among which. are whether a California court would have jurisdiction over the case. This may depend on issues such as where the contract was formed, where it was to be performed and the locations of the parties involved. If the contract was agreed to over the Internet, there are another whole set of facts and issues that must be considered.

There is also the issue of which statutes of limitations apply and determining if an aggrieved party can still file a lawsuit in court or whether the time has run out on such a claim. There are different statutes dealing with written contracts and oral contracts and those statutes vary from state to state. There are also different rules dealing with contracts involving land or real estate, minors, and other situations.

If you have a contract that’s been breached by another party or if you are being sued by someone over a contract, visit our law firm website at http://www.sebastiangibsonlaw.com and call the law firm of R. Sebastian Gibson today.

As a civil litigation attorney in California required to go to arbitration from time to time, I much prefers to use mediations to settle personal injury, business, real estate and construction cases that go into litigation. In fact, I try to avoid arbitrations at every opportunity because of their much more limited chance of resolving a case.

If you need legal assistance for a mediation or arbitration in California visit our law firm website at http://www.sebastiangibsonlaw.com for more information and call us at any of the numbers easily found on our website.

There are four types of arbitrations. None of them compare favorably with mediations, but here are the choices, and here’s what you can do to get through one without having your client taken advantage of.

The courts push the cases toward arbitration with much less effort directed toward mediation. While some courts have mediation programs set up with volunteer attorneys, the availability of these is limited as is the time given by the volunteer attorneys. If your client can afford it, in this writer’s opinion, mediation is a much better way to go than arbitration. But to understand why, you must first understand how arbitration works.

First, there are judicial arbitrations. These are non-binding which means if the arbitrator makes a bad decision, you can reject it by filing a trial de novo and proceed toward trial. The parties select the arbitrator they want. And as soon as either party doesn’t like the award that he or she had little involvement in the thought-making process by the arbitrator, a trial de novo is filed and the case heads toward trial.

If the time is taken to choose the arbitrator well, this type of arbitration can help to settle a case. However, because both parties know they can reject the arbitration award and neither party plays a part in the arbitrator’s thought process of how he makes his or her determination, there is a propensity for one side or the other to reject the award. At least in this type of arbitration, a client is not bound by the award of an arbitrator that turns out to be a moron.

A non-judicial arbitration is an arbitration that takes place not in the course of litigation, but rather because a contract or agreement, for instance, requires arbitration. This type of arbitration is almost always binding. One or both parties may not have realized when they signed the agreement that binding arbitration means they accept the possibility if not likelihood that the arbitrator will make a decision that is idiotic and any review of the award will be limited basically to evident miscalculations of math. California law allows very little opportunity to have a bad decision reviewed, modified or corrected.

If the contract or agreement calling for arbitration also provides that the losing party pays the prevailing party’s attorney fees as well as his or her own, a bad decision by an arbitrator can wind up costing the losing client $100,000 in a medium complex case or more. In this scenario, the attorneys should spend as much time to find a knowledgeable, and evenhanded arbitrator as they do preparing a thorough arbitration brief and preparing the witnesses and the evidence.

A voluntary arbitration can be binding or not. The question that should pop into anyone’s head is why have an arbitration when you can have a mediation where the first and foremost goal of both parties and the mediator is to see that the case settles for an amount both parties can accept? In a mediation, the parties can informally argue the matter out, the mediator can use his or her mediation skills to twist the parties’ arms and none of the parties are stuck with formal evidence rules in their discussions. Witnesses do not have to be brought in and the mediator can look at documents without having to consider as many evidentiary objections. Best of all, if the case does not settle, there is no binding award and the parties can either return to have another go, or continue their settlement discussions on their own through their attorneys.

We invite you to visit our law firm website at http://www.sebastiangibsonlaw.com and call us if you need help with a mediation or arbitration in California.

For most California age discrimination lawyers and labor attorneys, the choice of government agencies to contact to file an age discrimination complaint, much less for their clients, is a maze of confusing acronyms. The time limits to file such complaints are also hazardous to both the clients and their California labor lawyers.

If you’ve been the victim of age discrimination in California visit our law firm website at http://www.sebastiangibsonlaw.com for more information and call us at any of the numbers easily found on our website.

Congress passed the Age Discrimination in Employment Act (ADEA) of 1967 to address the practice of employment discrimination against older workers, and especially to redress the difficulty such workers face in obtaining new employment after being displaced from their jobs. It applies to employers with 20 or more full-time or regular part-time employees for each working day, in each of 20 or more calendar weeks, in either the current or preceding calendar year.

The ADEA prohibits discrimination in employment against workers age 40 or older and makes it unlawful for an employer to discharge any individual or otherwise to discriminate against any individual with respect to his or her compensation, terms, conditions or privileges of employment.

The Department of Fair Employment and Housing (DFEH) and the Equal Employment Opportunity Commission (EEOC), can and are willing to investigate such matters jointly, though one agency will usually take the lead.

The Supreme Court has made it significantly easier for the elderly client of a California labor attorney to prove age discrimination. Disparate treatment may be proved by circumstantial evidence. Where an employer has already hired significantly younger women to replace a person over 40 that they have fired, this evidence may be persuasive.

Where the employer has obtained any waiver of rights from the fired person, even a valid ADEA waiver does not affect the EEOC’s rights and responsibilities to enforce the law.

With the DFEH, the fired worker need only make an appointment to begin the process. The statute starts to run when the employee files a claim. With the EEOC, once the employee or the employee, with or without the assistance of a California labor lawyer, files an intake questionnaire and an affidavit describing the discrimination, the filing requirement will be met with the EEOC, after which the EEOC will notify the employer of the filed charge. Any further disparate actions taken against the fired worker after the ex-employee begins the process will be considered retaliatory by both agencies.

The ADEA incorporates the enforcement and remedial provisions of the Fair Labor Standards Act (FLSA). FLSA remedies include awards for backpay, reinstatement or front pay. The amount of front pay may be affected by the lack of availability of employment opportunities open to the fired employee. In addition, the employee may be entitled to an additional amount in liquidated damages upon establishing that the employer’s actions were willful. Indeed such an award is mandatory upon a finding of willfulness.

If the ex-employee is successful in his or her ADEA case, she may also recover attorney fees. Employers who think they can prevail and obtain attorney fees themselves are incorrect, as a California labor attorney might tell them, as that is not the case. The ADEA does not authorize fee awards to a prevailing defendant.

The California Fair Employment and Housing Act also prohibits age discrimination in employment and its remedies are in addition to those with the EEOC. With the FEHA, the fired employee is also be eligible to receive damages for emotional distress as well as punitive damages. The FEHA applies to all employers with five or more employees. And as with the federal rules, discrimination based on age over 40 is prohibited.

Should the employer take any retaliatory actions against the ex-employee for filing a claim with the EEOC, the DFEH, or the Department of Industrial Relations, each agency prohibits such actions and will consider them to be further violations of the law.

So where should a California Labor Lawyer file his or her client’s claim if they have been the victim of age discrimination, harassment or retaliation? And how long do they have to file it?

Age discrimination complaints can be filed with the DFEH, with the EEOC and with the Department of Labor Standards Enforcement (DLSE) but are most commonly filed with the DFEH and the EEOC.

With the DFEH, the interviewing consultant drafts a formal complaint. If the complaint is accepted for investigation, the complaint is also filed with the EEOC. After the DFEH issues an accusation, the DFEH may litigate the case in a public hearing before the Fair Employment and Housing Commission. If emotional distress damages or administrative fines are sought, the employee can have the case moved to a civil court. If the case is moved to court, the DFEH prosecutes, but the complainant is the real party in interest.

Government codes section 12965(b) requires that individuals, with or without their California labor attorneys, must exhaust their administrative remedies with the DFEH by filing a complaint and obtaining a “right-to-sue notice” from the Department before filing a lawsuit. The DFEH, however, will accept requests for an immediate “right-to-sue-notice” from persons who have decided to proceed in court. A DFEH complaint must be filed within one year from the last act of discrimination or you may lose your right to file a lawsuit.

Once a “right-to-sue-notice” is received from the DFEH, the employee and his or her California labor lawyer, has one year to file a civil lawsuit. Failure to do so may again cause you to lose your right to sue.

Common mistakes by harassment victims are not telling the person doing the harassment to stop, not documenting the harassment by that person, not reporting the harassment to your superiors, not making sure the employer is taking action to end the harassment, not obtaining medical or psychological help when needed, not realizing that retaliation is illegal, accepting the word of your employer that you do not have a case for harassment or discrimination, not filing a DFEH, EEOC or DLSE/DIR complaint within the time allowed, not having an attorney assess whether any arbitration agreement is binding, and not consulting with an attorney.

A complaint to the EEOC under Title VII of the Civil Rights Act of 1964 must be made within 180 days from the date of the incident. This period, however, is extended to 300 days if the employee also files a complaint with the DFEH. Complaints of discrimination commonly include discrimination based on race, color, religion, sex, national origin, age, handicap, sexual orientation and retaliation or reprisal. That time period, however, can be reduced to as little as 30 days after a complainant receives notice that a state agency such as the DFEH has terminated its processing of a charge. It is thus best to contact the EEOC immediately whenever discrimination is suspected because of its short statutes of limitations.

In addition, many governmental agencies require that for an employee or applicant for employment to preserve their rights under EEO laws, they must contact an EEO Counselor within 45 calendar days of the alleged discriminatory action. There are exceptions and grounds for extending this period, but a complainant does not want to be in a position to be having to argue those grounds as the complaint may be deemed too late to be accepted.

Once a complaint is filed with the EEOC, if the EEOC finds substantial evidence of discrimination, it will file a lawsuit. If the EEOC does not find sufficient facts to support the complaint, it dismisses the complaint and issues a “right to sue” letter to the complaining party. A lawsuit must then be brought by the complaining party within 90 days of receiving the Right to Sue letter from the EEOC.

A much less publicized and less known agency in the State of California at which complaints for retaliation and discrimination can be filed is with the Division of Labor Standards Enforcement (DLSE) of the Department of Industrial Relations (DIR). An employee or job applicant alleging violation of any law under the jurisdiction of the Labor Commissioner must file a complaint with the DLSE within six months of the adverse action. Adverse actions include unlawful discharge, demotion, suspension, reduction in pay or hours, refusal to hire or promote and other actions. There are, however, some exceptions to the 6-month deadline, but again, it is best to file a complaint as soon as possible to ensure that it is timely.

Filing a complaint with the Labor Commissioner does not prevent a person from filing a private lawsuit. While it can be costly to hire a California labor lawyer on an hourly rate to file such a lawsuit, some California labor attorneys will handle the case on contingency.

Finally, an employee or job applicant who alleges retaliation for having complained about a workplace health or safety issue has the right to file a concurrent complaint with the federal OSHA within 30 days of the occurrence of the adverse action.

Having said all of that, it is clearly within the jurisdiction of the EEOC to enforce the Age Discrimination Act of 1967 which protects against discrimination against people who are 40 years or older. The shorter time limits one has to file a complaint with the EEOC, however, causes many to file complaints with the DFEH instead. And for the most part, most people don’t even know about their rights to file complaints with the DLSE.

An advantage of filing with the EEOC, is that some applicants find that they also have a valid complaint under the Equal Pay Act of 1963, the laws of which are also enforced by the EEOC (although California also has an Equal Pay Law). The EEOC also enforces the Americans with Disabilities Act of 1990 as amended in 2008 and the Rehabilitation Act of 1973.

We invite you to visit our law firm website at http://www.sebastiangibsonlaw.com and call us if you’ve been the victim of age discrimination in California.

 My last post discussed the issue of brand proximity, by which I mean the co-existence of other identical or similar brand names for other goods or services.  I mentioned that it is not necessary that there be no other users of your name whatsoever.  Rather, there should be no other users of the mark for goods or services so similar to your own that consumers will believe there is a connection between the two products – either that they are made by the same company, or that there is some other connection such as licensing or approval of one use by the other user.

Don't be misled - in real life, she takes off the blindfold and examines your mark and your motives.

This (mistaken) belief that some connection exists between two trademarks is the key to a court’s determination of the issue of trademark infringement.  If the two trademark uses at issue are similar enough that it is reasonably likely that consumers will make such a mistake (a circumstance that is called “a likelihood of consumer confusion” in trademark jargon), then the court will find trademark infringement.  In that case, the court almost always will issue an injunction, ordering the later (or “junior”) trademark user to stop using its mark.  In some cases, the court also will order the infringing later user to pay damages to the earlier (or “senior”) user.

How does the court make this determination?  Does it try to project itself into the minds of the public?  Of course, judges cannot read the minds of the purchasing public and formulate a collective viewpoint.   Instead, the judge considers a list of factors formulated by courts in prior decisions.  The list of factors may vary slightly depending on which U.S. Circuit Court of Appeals rendered the decision applicable in your area, but the similarities greatly outnumber the minor differences.

Generally, the court will consider these factors:

Ÿ  the strength of the senior user’s mark (if the plaintiff’s mark is generic, highly descriptive, or widely used by unrelated parties, the law suit will fail);

Ÿ  the similarity of the marks themselves (often the uses are not identical – so how similar are they?);

Ÿ  the similarity of the respective goods and the trade channels through which they are advertised and sold (e.g., are both products sold through sporting goods stores?);

Ÿ  whether consumers have evidenced any actual confusion between the two uses (“Dear Sony – I bought your SONNY brand HDTV and it’s a piece of junk!  I’ll never buy anything from you again!”); and

Ÿ  what level of care the public is likely to use in buying such goods (generally speaking, cheap goods = little care, while expensive goods = greater care.) 

For obvious reasons, the court will first satisfy itself that the plaintiff’s mark is strong.  The next thing the judge will assess is the degree of similarity of the marks and the goods or services.  If they are not reasonably similar, the court will not look any further. 

Beyond these initial considerations, the most decisive of these factors probably is that of whether any actual consumer confusion has occurred.  Since the test for infringement is whether a likelihood of consumer confusion exists, a court obviously will not need to see much actual confusion before deciding that such a likelihood exists.

Another “super factor” that the court may consider is the defendant/junior user’s intention in selecting the mark.  If the evidence suggests that the defendant chose the mark with the intention that confusion occur (to provide a competitive boost, for instance, by riding on the plaintiff’s brand good will), then in some jurisdictions the court will go as far as to assume that the junior user succeeded in that effort, and find infringement.

Of course, other factors may come into play, and these factors are all indirect ways for the judge to assess the likely consumer reaction to the two brands at issue.  Usually, attorneys on both sides of the law suit will also conduct consumer surveys to try to get a direct read on purchaser understanding.  If properly conducted to avoid leading those surveyed, these surveys can be a potent tool in proving or disproving infringement.

PHOTO COURTESY OF FLICKR USER MIRA66, UNDER THIS CREATIVE COMMONS LICENSE.

内陸部のロンドンでも最大風速70mph（31.5m/s）を記録、家の中にいても、ビュービューと風の音が聞こえてくる。うちのアパートは、以前倉庫だか何だか、産業施設だった建物を改造したもので、床から天井まである窓から、すきま風が少し漏れてくる。イギリスでは冬場にGale（強風，疾風）の日が多く、今日は最高気温が14度程度と、それほど低くなかったので良かったけれど、寒い日はかなり辛い。先ほど外出した際は、落ち葉や折れた枝、段ボール、ゴミなどが至る所に散乱。自転車だったので、向かい風にあたると必死でペダルをこいでも全然前に進まない。飛んで来た物が当たって怪我なんかしたくないので、今日は早々に帰宅。安全な家の中から、外の劇的な様子を眺めている。

The strongest storm in this year attacked Southern part of England and Wales today. Gale-force winds and heavy rain have brought flooding and damages including bringing down trees and branches, and delays and cancellation of the trains and ferries are reported. It is said that the first half of the autumn was unseasonably mild and pretty dry but that’s all changed now.

The winds reached a “rare” 70mph inland in London, and I have been constantly hearing the strong wind while I am at home. Our apartment building is a former industrial warehouse and the wind come inside a little bit through the large floor-to-ceiling windows. Today is rather mild and the highest temperature was around 14°C, but Gale is seen quite often in the winter in London, and it could be quite cold when the temperature is low and strong wind blows. I had to go through a mess of fallen leaves, broken branches, cardboards, and trashes scattered all over when I went out earlier. I went out with my bike, I couldn’t barely move forward with headwinds, no matter how hard I pedaled. I didn’t want to get hurt with flying objects and came back as soon as possible. Now I am in my safe space and looking pretty dramatic sight outside.

Flashback, 20 Jul 2009

I took the day off from work today to take care of these matters due to the landlord’s 5 day or quit letter. 8 hours of vacation lost.

We mailed a check for 5 months rent to the landlord along with letter overnight in time to meet the 5 day deadline to prevent us from being evicted.

The landlord sent us an email confirming that he does read his emails at the address we have been using. He did not make an alternative offer and also indicated that he is still planning on doing a short sale or foreclosure and expects us to move out. Unbelievable! He also informed us not to worry about the 5 day limit on the letter.

I replied informing him that we have to abide by the letter, lease, and law unless he provides a formal alternative in writing, which he had not done.

Later that night when we came home, we saw a newspaper article that had our house list listed as a foreclosure sale for 28 Jul 2009 (8 days from today). I called the landlord furious since we just sent him a check for 5 months of rent and that he lied. The money was just sent that day, and now it looks like we were going to be evicted anyway!!! He said that foreclosure was not going to happen and that there was still a short sale in the works. We still had not agreed to any specific terms of supporting a short sale. I informed the landlord that if the property is foreclosed upon that I will sue him for breech of contract.

A rede norte-americana CBS planeja estrear em 2010 uma nova versão de Havaí 5-0. A NBC prepara um remake de Arquivo Confidencial (The Rockford Files). NCIS: Los Angeles é um sucesso nos Estados Unidos. Melrose Place ganhou temporada completa e 90210 segue com boa audiência para os padrões do CW.

O fã de séries que é esperto já acendeu a luz amarela. A crise de criatividade que assombra o cinema há alguns anos começa a bater à porta das séries. Se os produtores não abandonarem a fórmula fácil dos remakes, dos spin-offs (seriados derivados), das versões norte-americanas de atrações internacionais e dos roteiros adaptados, tudo o que foi construído nos últimos anos pode escorrer pelo ralo.

Sim, eu sei que é financeiramente seguro produzir The Vampire Diaries. Mas não foi graças a Kath & Kim, Life on Mars ou Worst Week que as séries chegaram a um dos maiores índices de popularidade da história do formato.

Os seriados são objetos de culto graças a apostas ousadas como 24 Horas, Desperate Housewives, Família Soprano, Sons of Anarchy, The Shield e outras atrações.

O comodismo dos produtores de Hollywood sacrificou a qualidade em nome de algumas boas bilheterias. Pense rápido e me diga um verdadeiro clássico nos últimos cinco anos. Que longa-metragem vencedor do Oscar merece lugar no ranking dos filmes realmente memoráveis?

Em uma coletiva do Warner Channel realizada há algum tempo, o crítico Rubens Ewald Filho me disse que as produções para a TV andavam mais interessantes que muitos lançamentos do cinema.

Concordei com ele. Não foi à toa que atores consagrados, como Glenn Close, migraram para a telinha. São raros casos como Damages ou House no cinema recente. Não consigo pensar em um filme de impacto, que realmente impressionou as pessoas ou contribuiu para uma mudança no modelo de negócio, como Lost e sua interação com outras mídias.

Remakes e afins são ótimos para saudosistas. Não para quem realmente gosta de TV e quer atrações de qualidade.

* Texto originalmente publicado no blog Poltrona.

Authorities in China’s Inner Mongolia accuse a mining company of destroying part of one of the oldest sections of the Great Wall…. From BBC News. Full story

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