Open Records Noncompliance by Board of Regents

Schick v. Board of Regents, 334 Ga. App. 425 (Nov. 12, 2015)

Starting in 2012, the editor of the Georgia Perimeter College student newspaper commenced open records requests for documents concerning a $25 million budget shortfall at the College and personnel layoffs. The request for document by Schick was expansive and would have been costly to fulfill. For example, the documents covered a period of time of approximately six years. College and Board of Regents representatives discussed with Schick that he might want to narrow the scope of his request and the amount he would have to pay to have the documents provided. As the Board undertook these discussions with Schick, the Board never invoked any statutory exemption to withhold any of the requested documents. Ultimately, with the assistance of counsel, the Board’s cost estimate to produce the documents was reduced from approximately $2,500 to $291.

The Board then began the process of reviewing and providing documents to Schick. By February 2013, the Board had produced over 12,000 pages of documents and it notified Schick that the compliance with his request was complete.

Schick believed there were certain “missing” documents and filed suit in June 2013 seeking complete production of documents responsive to his request. In its answer, the Board asserted that some documents were withheld under O.C.G.A § 50-18-72(a)(4) [for law enforcement, prosecution or regulatory agency pending investigation documents], and the Board produced an additional 713 pages of documents.

The case went to trial in Superior Court. The trial court found that the Board had violated the Open Records Act by failing to timely designate specific exemptions upon which it relied to withhold documents, and imposed a $1,000 penalty. The trial court did agree that the Board could withhold documents under the “pending investigation” exception, and Schick appealed.

On appeal, the key holdings of the Court in connection with the Open Records Act were these:

  • The Court reaffirmed that the Open Records Act is to be broadly construed in favor of allowing inspection of government records, and any exceptions should be narrowly interpreted.
  • One purpose of the Act is to make the production of records expeditious.
  • The Court did not accept the argument that the Board of Regents was a “regulatory agency” for purposes of the pending investigation exception in 50-18-72(a)(4).
  • And most importantly, the Court of Appeals rejected the argument that some documents were exempt just because the Board had shared these documents or provided them to “a law enforcement agency.” The Court of Appeals said that the exemption in (a)(4) is for records of a law enforcement, prosecution or regulatory agency, and not records merely related or pertaining to an investigation.
  • There is a separate exemption in 50-18-72(a)(3) of records “compiled for” law enforcement purposes, but these are limited to documents that would identify a confidential source, disclose confidential investigation or prosecution material that would endanger life or physical safety, or that would disclose a confidential surveillance or investigation.
  • The Court of Appeals affirmed the trial court’s refusal to impose attorney’s fees on the Board for the amount of time it took to produce the voluminous records. The Court found that the Board had worked diligently including nights, weekends and holidays to provide documents.
  • However, the Court of Appeals did remand the case for the trial court to determine if attorney’s fees should be assessed because of the Board’s invalid reliance on withholding some records based on the pending investigation exception.

open records

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Doubling Down on Overtime Exemption

Current Overtime Law

The Fair Labor Standards Act (FLSA) requires that covered, nonexempt employees in the United States be paid at least the Federal minimum wage for each hour worked and receive overtime pay at one and one-half times the employee’s regular rate of pay for all hours worked over 40 in a workweek. However, there are a number of overtime exceptions to this rule. For example, the current law does not require employers to pay overtime compensation to executive, administrative, professional and outside sales employees who are paid on a salary basis and receive more than $23,660.00 per year or $455.00 per week, even if they work over 40 hours. See 29 U.S.C. 213(a)(1).   This is referred to colloquially as the “white collar exemption.”

Overtime Exemption Change

The Department of Labor (DOL) proposes to more than double the salary level that would qualify white collar workers for overtime exemption. Among other things, the proposal sets the standard salary level equal to the 40th percentile of earnings for full-time salaried workers as of 2016, which is projected to be $970 per week, or $50,440.00 annually for a full-year worker. More importantly, in order to prevent the salary levels from becoming outdated, the DOL is proposing to include a mechanism to automatically update the salary and compensation thresholds on an annual basis. The DOL estimates that during the first year alone, 4.6 million currently exempt workers would become non-exempt and entitled to minimum wage and overtime protection under FLSA, without some intervening act by their employers. See Federal Reg. Vol. 80, No. 128 (Mon. July 6, 2015).

Impact on Business

The period for public comment on the proposal closed on September 4, 2015, and the proposed change attracted both praise and criticism from worker’s groups and businesses. The comment period also served to demonstrate some of the confusion that exists under the current regulation such as the mistaken belief that payment of a salary automatically disqualifies an employee from overtime pay; or that if a white collar employee is in fact nonexempt she would have to be converted to hourly pay. See Federal Reg. Vol. 80, No. 128 (Mon. July 6, 2015). The specific impact of the proposed changes on the CSRA is difficult to project, but the potential impact could be staggering for some businesses. The pending approval of the rule would be a good time for local businesses to reassess the exemption status of their employees in preparation for the change, which many believe to be inevitable.

Since the ultimate burden of proof for the actual application of an exemption rests on the employer, employers should begin evaluating the exemption status of employees as soon as possible so that they have enough time to adjust to the proposed rule. While the proposed bright-line salary test is one step of meeting exempt status, it works in concert with the “duties test.” As was previously the case, job titles, descriptions and paying a salary versus an hourly rate are not determinative of exemption status. In order to qualify as exempt under the proposed rule, an employee must not only meet the more than doubled pay requirement, but employees must also continue to meet certain tests regarding their job duties. There is potential for employees/positions that have traditionally been exempt to be treated as non-exempt for the first time in their careers or the history of the position.

Moving Forward

The new overtime white-collar exemption rule will be issued approximately July 2016, according to the U.S. Department of Labor’s fall 2015 regulatory agenda.  The DOL may also make some changes to the “duties test,” which have yet to be proposed. The proposed change is particularly relevant in Georgia and South Carolina where the annual pay is often less than the national average. The bottom line is that it matters, and moving forward, employers should pay close attention to employee’s job functions and make sure they brace for the impact of change to their current classification structure. A specific strategy is based on the needs of each individual business, but reclassification will require an effective roll-out strategy for all. As the DOL gears up to double down on overtime exemption, CSRA businesses should not gamble with their economic security. Businesses should be prepared to incorporate a communication plan, maintain proper documentation of the reclassification and schedule training regarding policies affecting employees.

Salary Threshold Increase for Overtime Exemption

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Witnesses in the Making: Opposing Counsel Communicating to Employees

Navigating a workplace incident can be a company’s nightmare. Claims of workplace injury, harassment, hostile work environment, OSHA violations, or the like put employers on pause as to the manner of properly handling legal proceedings. This is compounded when opposing attorneys interview company employees about the workplace incident without the presence and/or permission from the company’s counsel to interview such employees (commonly referred to as ex parte communications).

Ex parte communications can result in more than a few harmless comments. The interviewing attorneys may call upon these employees as liability witnesses at trial—often on cross examination. Under Georgia agency law, the statements and actions of employees regarding incidents for which an employer may be liable can be attributed to the employer. And, statements made by these employees are admissible at trial if it concerns a matter within the scope of the employment and is made during the time of employment. Thus, employees may make statements during ex parte communications with attorneys without the presence of defense counsel that could potentially be damaging to the company in a subsequent trial.          

Know the Ethical Violations of Ex Parte Communications

Lawyers must subscribe to ethical standards, and pursuant to Georgia Rule of Professional Conduct 4.2(a), “[a] lawyer who is representing a client in a matter shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or court order.” Comment 4A to this rule clarifies that a lawyer cannot have ex parte communications with:

  • Officers, directors, managers, and supervisors.
  • Employees who have the authority to obligate the organization with respect to the matter.
  • Employees who regularly consult with the organization’s lawyer concerning the matter.
  • Employees whose act or omission in connection with the matter may be attributed to the organization for purposes of civil or criminal liability.

The above parties are protected as clients under the counsel of the company. It is a violation of ethics, therefore, for an attorney to have ex parte communications with a company’s current employees regarding a dispute without the presence and/or permission from defense counsel if the employee falls within one of these categories.

There Are Always Exceptions

1.    Georgia Rule of Professional Conduct 4.2 requires that opposing counsel must know that the employer is represented by counsel at the time of the communications. Documentation will prove knowledge! Thus, a company should have its counsel send a letter of representation to the opposing attorney immediately upon receipt of information that the complainant has retained representation. Without such a letter, the opposing attorney will likely be able to participate in ex parte communications with employees by disclaiming knowledge of representation of the company.

2.    An attorney is allowed to have ex parte communications with employees who do not fit the descriptions listed in Comment 4A including:

  • Employees who do not hold positions with responsibilities related to directing, managing, or supervising;
  • Employees whose acts or omissions cannot be ascribed to the company; and
  • Former employees.

An employer’s counsel should, therefore, encourage employees to refer any questions related to incidents to counsel to prevent such ex parte communications.

3.    Georgia case law allows an attorney to call co-workers of the plaintiff for cross-examination in suits against a company. In order to prevent this, defense counsel should argue to the trial judge that if the opposing attorney can interview a party’s co-workers without the presence and/or permission from defense counsel, then the attorney should not also be permitted to cross-examine the employee.

What To Do If Ex Parte Communication Has Taken Place

It is critical for an employer to protect itself in that event that ex parte communications occur between an employee and opposing counsel. If such communications do transpire, an employer and/or its counsel should do the following:

  • Confirm with the employee-witness the timing and substance of the communications.
  • Depose any investigators that have conducted interviews in the case.
  • Request copies of all interview statements with witnesses in discovery.
  • Require opposing attorney early in litigation to seek a court order prior to speaking directly with employees.
  • Seek the appropriate remedy based on the facts of your case.

What Remedies Can an Employer Seek?

The primary remedy for a company in this situation is the disqualification of the offending opposing counsel. This is quite helpful when the case is nearing trial because another attorney (who is likely less familiar with the case) must assume the responsibilities of the case from the offending counsel. Additionally, other remedies are available. A court may exclude the employee-witness with whom counsel had ex parte communications, a court may issue sanctions, or the attorneys could enter into an agreement to stipulate to a jury instruction that the acts or omissions of the employee-witness with whom the offending counsel had ex parte communications cannot be used for the basis of any liability against the defendant employer. Finally, defense counsel could request a mistrial, but this is rarely granted.

If your company finds itself with a notice of lawsuit or investigation by an attorney for a workplace incident, converse with your lawyer, educate your employees about communication, and make sure opposing counsel has documentation that your company is represented.

ex parte communications

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Open Meetings Violation: The Aftermath of the City of Cummings Denying Journalist Right to Video

Court Of Appeals Nixes Part Of The City Of Cummings Open Meetings Decision

Gravitt v. Olens, 2015 Ga. App. LEXIS, was decided by the Georgia Court of Appeals on July 16, 2015. It was the appeal of an enforcement action brought by the Attorney General of Georgia against the City of Cummings and its Mayor for having denied a journalist the right to video a city council meeting and also for having her removed from the meeting. The trial court imposed civil fines and attorney’s fees against the Mayor and the City. In the appellate decision, the following rulings were made:

  1. The City is not protected by sovereign immunity in an open meetings action filed against it by the Attorney General of Georgia. Since the Attorney General has been authorized by O.C.G.A § 50-14-5(a) to bring a civil enforcement action, it amounts to a legislative waiver of any immunity the City might have had.
  1. The Court further held that the Mayor had a “ministerial” duty not to violate the Open Meetings Act. Since it was a ministerial duty rather than a discretionary duty, the Mayor was not protected by official immunity.
  1. However, the Court of Appeals held that the City itself was not subject to the civil fines of $1,000 for the first violation and $2,500 for subsequent violations as provided in O.C.G.A § 50-14-6. According to the Court of Appeals, those penalties may only be imposed against “any person” who violates the Act, and that a municipality is not deemed a person.
  1. The Court of Appeals held that a fine in excess of $1,000 could not be imposed even though the lawsuit alleged three different violations against the journalist at the same meeting. The Court held that there had to be violations at a subsequent meeting to impose the $2,500 penalty, and that the lawsuit filed by the Attorney General concerned only violations at one meeting.

Left undisturbed was a $1,000 fine against the Mayor and attorney’s fees yet to be determined by the Superior Court.  It is anticipated that either the City and its Mayor or the Attorney General will seek further review from the Court of Appeals or the Georgia Supreme Court on the rulings that one or the other may disagree with.

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6 Smart Things To Do Before Year-End

The end of 2015 is only a month and a half away.  Gene McManus of AP Wealth Management, LLC put together a list of 6 must do things to do before year-end for optimal tax planning purposes.

1. Harvest year-end investment losses.

Determine positions in taxable investment accounts that have losses and see if you have gains that may be offset by those losses. This is ideally done when re-balancing your investment portfolio to your target asset allocation.

2. Maximize retirement plan contributions.

Determine the maximum amount that can be contributed to your retirement plan. Calculate what has been deposited year-to-date so that you can maximize current year contributions before year-end. This is the best remaining tax deduction because you are avoiding income tax on contributions made to your account. If you are in a combined 34% tax rate for federal and state purposes, this is a 34% return on your money the day you make a contribution. That is hard to beat!

3. Consider a Roth conversion.

If your income is likely to be higher in future years, it may make sense to convert IRA funds to a Roth IRA. If the current year income is unusually low, you will likely pay less tax on conversion and future growth will be tax free. Additionally, you may re-characterize or “undo” the Roth conversion until October 15th following the year of conversion and receive back all of the tax paid at conversion. This would make sense if the value of the converted funds substantially decreased in value.

4. Give.

Gifts of appreciated securities will avoid capital gains tax and allow for a charitable deduction for income tax purposes. Determine taxable income for the current year and compare to next year. Based on your tax rate in the respective years, plan contributions based on tax rate. Be sure to watch out for charitable contributions limitations.

5. Plan itemized deductions.

Review your current year income and compare to next year’s anticipated income. If your income is higher this year, itemized deductions will be more valuable this year. In that case, accelerate deductions into the current year when they will be worth more. Some deductions are subject to a floor based on income. These deductions can be worth more as well in low income years, or vice versa.

6. Watch mutual fund purchases & distributions.

Be careful when purchasing mutual funds late in the year. Over the course of the year, a mutual fund’s share price will typically increase commensurate with the interest, dividends and capital gains that are accruing within the fund’s investment portfolio. Near year-end, mutual funds will make distributions of those items and that will cause the fund’s share price to fall by the amount of the distributions. Purchasing a mutual fund just before such distributions can create a calamity by causing a tax liability on the distributions while the value of the investment has declined.

Gene-McManus-Year-End-Tax-PlanningAbout the Author: Gene has over twenty-five years of experience helping people simplify their financial lives He is the creator of The Lifetime Financial Solution™, a unique process for identifying, managing and monitoring life and financial goals. Gene is a native of Aiken and has spent most of his career in Augusta building successful accounting, financial planning, investing, and risk management businesses. Gene is a 1985 graduate of Clemson University. He presently serves on the board of University Health Services, Inc. and chairs the Richmond County Hospital Authority. He is a past member of the Finance, Accounting and Legal Studies Board at Clemson University. He currently serves on the Finance Committee and chairs the Investment Committee for The Catholic Diocese of Savannah. Gene is a member of St. Mary On The Hill Catholic Church. He formerly chaired the Finance Committee at Aquinas High School, served on the Finance Committee of St. Mary’s Church, served as President of the Uptown Kiwanis Club and served on the Board of Directors for Ceritas Corporation.

Copyright © 2015 AP Wealth Management, LLC. All rights reserved.

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This blog post was prepared by Eugene F. McManus, CPA, CFP® of AP Wealth Management, LLC.  This piece was republished on the Hull Barrett webpage with permission from AP Wealth Management for the purpose of assisting and informing clients, but does not represent legal advice.  When making financial or legal decisions, it is always advisable to receive advice based on personal circumstances.  If you have questions, please contact a lawyer and/or financial planner.

Meet Jim Ouellette

Jim Ouellette is Hull Barrett’s newest associate.

Jim graduated from Notre Dame Law School and served as an Officer in the U.S. Navy for 21 years. After retirement from the JAG Corps as a Navy Commander, Jim joined Hull Barrett. Hull Barrett posted his professional bio here but also wanted the community get to know him on a personal level. Here is what Jim had to say in a recent interview:

Let’s start off with something easy. What is your favorite snack food?  

After spending three years in Italy, I would instinctively answer “red wine.”   However, if I must stick to “food” I do admit that I enjoy home-made chocolate chip cookies, especially when still soft and warm.

Wine and cookies! Good answer. Now for a question about your field: what fascinates you about the legal industry? 

As an attorney, I get to take part in a very complex and dynamic legal system which, although constantly, continues to operate on two very simple principles:  (1) seek justice, and (2) protect the innocent.

What do you value in leadership? 

A true leader sets the example, learns from the individuals they work with, and makes others want to follow them through trust in their capabilities and faith in their motivations.  There is no such thing as “leadership by being a jerk.”  I value those who inspire and lead from the front by example, not those who push from behind.

What are you passionate about?  

I’m passionate about ensuring the safety and welfare of children.  Life, liberty and the pursuit of happiness are rights that belong to the young, to include necessities such as food, shelter, clothing, education, safe and stable home environments, and personal safety.

Let’s bring it local.  What is your favorite thing about the CSRA?

First and foremost, I have to thank the CSRA for producing my beautiful wife.  As a person, she embodies much of what I love about the CSRA:  a positive disposition, cheerfulness, and ambition.  I’m excited to be settling into a military friendly community that is on the rise, working hard to improve business opportunities, education, employment, and essential services.

Here is one of the most important questions and what everyone really wants to know: what is your favorite sports team? 

I am all about the University of Notre Dame – GO IRISH!

Back to law for a minute.  What was your most interesting case? 

In 2001, when internet protection was misunderstood and there were few computer experts available to testify, I defended an individual who was charged with accessing child pornography on a library computer that had been infected with malware that was causing innocent searches to redirect to certain adult websites.  The case involved finding and qualifying an “expert” to explain search history to a low-tech audience and then arguing that the viewing of thumbnail photographs did not violate federal law in that case.

Traveling new legal terrain must be fascinating. Let’s end with some interesting facts about you.

I’ve traveled to twenty six countries, lived in three, appeared as an extra on television shows in two, and served as a diplomatic liaison in one.

Before graduating high school, I once rode on a bus through Chicago while sitting next to George Lucas – he assured me that “Return of the Jedi” would not be the last Star Wars movie.

Meet-Jim-Ouellette

Tax Strategies Beyond Year End Giving

In the first part of this series, we discussed year-end charitable giving and tax strategies that can accomplish both clients’ charitable goals and provide some significant tax benefits.  The focus of that article was immediate gifts given and received that provide current support to charitable organizations.

But what if clients want to be more strategic with timing and how they give?

Other Tax Strategies: Planned or Deferred Gifts

Planned or deferred gifts play an increasingly important role in providing a foundation for future ongoing support to a charitable institution.  Just ask any university president how much time is spent in seeking planned gifts and you will find that it is a substantial portion of their job.

Simple Tax Strategy

As in current gifts, the simplest way to make a planned gift is a bequest of cash or property through an individual’s estate planning documents, either a Will or a Trust.  The bequest can be a specific dollar amount or a percentage of one’s estate.  The donor continues to own the asset until the time of death or trust termination at which time the Trustee or Personal Representative/Executor fulfills the commitment under the terms of the governing document.

Rather than a bequest in a document, donors should also consider making a charity the sole or partial beneficiary of a life insurance policy such that the charity receives the proceeds of the policy at the time of the insured’s death.  A particularly attractive source of charitable gifting can come from an IRA or other tax-deferred account where the payment to a qualified charity eliminates the ultimate income tax liability that must otherwise be paid when distributions are taken by an individual.

Sophisticated Tax Strategy

An area that should be explored by a potential donor involves more sophisticated techniques that provide for ultimate charitable gifts to an organization while maintaining a current income stream for the donor until their death.  Charitable gift annuities and charitable remainder trusts can enhance the value of a planned gift to one or more favorite institutions while continuing to provide the donor with a flow of income through their remaining lifetime.  There are many variables involved that ultimately affect the amount of the income tax and estate tax deductions available to a donor, including the age of the donor, whether it is for only the donor’s lifetime or also includes the lifetime of a surviving spouse, and the payout rate for the ongoing lifetime income payments.  These annuities and trusts represent the merger of two core concepts – satisfying the desire of donors to support the mission of a favorite charity while providing for continuing financial security for their remaining lifetime.  Your favorite charity will normally be able to provide you with illustrations without cost or obligation that can show you the benefits of establishing a charitable gift annuity or charitable remainder trust including the amount of lifetime income benefits you would be receiving as well as the value of the ultimate gift to the organization.

Tailored Tax Planning

As stated in my previous column, your tax and legal advisors are important partners in making sure that the gifts meet both the intent of the donor and the expectations of the recipient.  A plan can be tailored to meet your specific charitable goals and lifetime income needs.  We welcome the opportunity to explore how planned giving can accomplish multiple goals for you and your family.

Tax Strategy

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Multi-Million Dollar Lawsuit Dismissal from Train Derailment

Hull Barrett obtains multi-million dollar lawsuit lawsuit dismissal from train derailment.

Hull Barrett attorneys George Hall and Shannon Lanier successfully defended a Class I Railroad in a multi-million dollar property damages lawsuit. George Hall and Shannon Lanier were able to convince the trial court to grant summary judgment on the liability damages claims asserted by a commercial landowner after a derailment in Burke County, Georgia in 2010. The landowner alleged that he planned to develop the 900 acre tract of land as a mitigation and stream credit bank and projected 15 million dollars in potential revenue.

Hall and Lanier convinced the trial court to grant summary judgment based on federal preemption defenses and the speculative nature of the Plaintiff’s claim for lost profits. An appeal is expected.

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Fair Use of Photographs: Using Photos Found On Google Images

U.S. Court of Appeals Decides “Fair Use” of Photographs

The United States Court of Appeals for the Eleventh Circuit (Georgia, Florida and Alabama) decided a case on September 17 involving the “fair use” of a photograph obtained over the internet. Katz v. Google, 2015 U. S. Appeal LEXIS 16546 (11th Cir. 2015).

Raanan Katz is a minority owner of the Miami Heat basketball team and a commercial real estate tycoon. On a visit to Israel, a newspaper there took a candid photograph of Katz that showed his face contorted and his tongue sticking out.

A tenant in one of Katz’s shopping centers started a blog campaign critical of Katz’s business practices. She found the unflattering photograph through a Google search, and started including it as a part of her blogs criticizing Mr. Katz.

Mr. Katz contacted the newspaper in Israel and purchased the copyright to the photograph, and sued the tenant for copyright infringement for posting the photograph without permission. She defended on the basis of fair use.

The Court of Appeals held that the tenant’s use of the photograph was in fact “fair use” and upheld the dismissal of Katz’s copyright claims.

The facts supporting fair use were these:

  • The use of the photograph in the blogs was primarily educational rather than commercial – a part of criticism and commentary.
  • The use of the photograph was transformative in that it was in conjunction with a new meaning, message or expression compared to its original use. The use by the tenant in the blogs was for purposes of ridicule and satire.
  • The original use and publication of the photograph occurred prior to the tenant’s posting on the blogs.
  • While photographs are entitled to copyright protection, this photograph was primarily a factual work and not one that involved subjective and artistic judgment.
  • The use of the photograph did not materially impact the market that Katz would have had for the photograph in question.

This opinion by the Eleventh Circuit supports the practice of blogs, newspapers and publications that locate and use photographs of individuals for purposes of illustrating news and commentary. For example, while Herschel Walker has the exclusive right to promote and market his name, image and likeness, and while a photographer of a picture of Walker would hold a copyright to the photograph, a blog or newspaper could as “fair use” publish a photograph of Walker in conjunction with a news article or commentary concerning Mr. Walker.

But, fair use of a photograph in conjunction with commentary, satire or reporting does not extend to an unauthorized commercial use for advertising, marketing or merchandising.

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Four Tips to Start-Up Companies for Avoiding Trademark Pitfalls

In the early stages of start-up companies, generally protection of intellectual property rights is not a priority—whether it be from oversight or as a result of tight finances. Understandably, the leadership of start-ups primarily focuses on funding, organization, strategy, growth, talent, and marketing. Whatever the reason, neglecting to protect a start-up’s intellectual property at the inception of the company can be devastating in the long run.

Fortunately, with a little research and a reasonable cash outlay, companies can avoid many intellectual property pitfalls. Here are four tips that start-up companies should follow:

Tip 1: Not Already in Use

The business name is a critical factor in establishing and maintaining a brand to be protected by state and federal trademark law throughout the life of the business. One major stumbling block to a successful start-up is selecting a company name that is identical or similar to a name that is already in use. Remember, someone in a neighboring city, county, or state may have come up with a similar name. This problem can be avoided entirely with some preliminary research.

From the onset, the business should also decide if it will operate under a trade name. A trade name is the official name under which a company does business. It is also known as a “doing business as” name, assumed name, or fictitious name. For example, the name of a start-up company might be Robertson, Inc., but the company may decide to open all of its offices under the name “Robertson’s Rentals.”   As with the business name, it is important to select a trade name that is not already in use in order to receive maximum protection under federal and state trademark laws.

Start by researching the business name AND the trade name with the Secretary of State. The Secretary of State holds a database of registered domestic and foreign businesses and most can be searched online (Georgia and South Carolina). It is recommended to search the databases of all states in which the new company plans to do business. After searching the Secretary of State database for registered names, the start-up will need to search for registered trade names (not business names) in the records of the Clerk of the Court of General Jurisdiction in the county containing the principal place of business. While this type of search is not online, it can still be performed with relative ease.

Note: In your business formation process, contact a trademark attorney to register the trade name or fictitious name should you decide to utilize one. Luckily, registering a trade name is generally an inexpensive pursuit, especially in Georgia or South Carolina.

Tip 2: Does Not Run Afoul of Existing State or Federal Trademarks

Another consideration in choosing how to name the business is selecting a company name that is not identical or similar to a registered state or federal trademark. This is separate from a Secretary of State search or a county trade name search. A start-up should also exercise the same caution when naming products or services. Trademark rights are generally based on the principle that the first person or entity to use a mark has priority, whether trademarked or not. A trademark does not necessarily need to be registered in order to have priority. Therefore, if a start-up chooses a company name, product name, service name, or slogan that is already in use by another company, the start-up runs the risk of exposing itself to costly litigation, otherwise known as infringement.

Search the Trademark Electronic Search System (“TESS”) on the website for the United States Patent and Trademark Office (“USPTO”). Also, some Secretary of State websites have the capacity to search registered state trademarks. Finally, searching Google, Bing and Yahoo will also help a start-up in deciding a name.

Tip 3: Not Already an Existing URL

When choosing a company name, product name, service name, or slogan, a start-up should perform an online search to find out what URLs have been secured. Companies often overlook that website addresses are a form of intellectual property. Registering a domain name costs merely a few dollars, so a start-up should be sure to register a domain name that would not be easily confused with other businesses. Searching Google, Bing, and Yahoo is generally all that is needed to be sure that no identical or similar domain names are already in existence.

Tip 4: Plan in the Early Stages of the Start-up

While intellectual property registration should be sought as soon as the start-up can afford it, companies justifiably spend their limited budgets on strategy, growth, talent, and marketing. Thus, it is important that a start-up strategically plan to protect its intellectual property. As the company generates revenue, funds should be earmarked for intellectual property protections. A start-up should retain a trademark attorney for help in performing a full trademark search, filing a trademark, and executing other necessary legal actions to protect its intellectual property. A start-up should also police its intellectual property—meaning that the company should ensure that others are not making use of its marks without permission. If someone steals intellectual property, the start-up should retain counsel to send cease-and-desist letters and file infringement suits if need be. After the start-up has worked so hard to foster and hone its intellectual property, it should protect it.

Why Start-Ups Should Follow These Steps?

Following these four tips will provide a start-up with protection against the copying, theft, and illegal use of its marks. Additionally, the start-up will be protected from infringement litigation from other established businesses for intentional or unintentional use of their marks. Finally, seeking financing for the start-up will be easier because a start-up with protected intellectual property rights will gain improved attractiveness to investors. Starting a business with an intellectual property strategy is key to the success of the business.

Check out our other links for more information about copyrights and trademarks.

start up

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Drug Trafficking – Reduced and Retroactive Prison Sentencing

Our Prison System: Overcrowded and Expensive

Over the past few decades, prison overcrowding has become a growing national concern. As of August 29, 2015, there were more than 94,000 individuals serving time in federal facilities for drug related offenses.[1] This figure is an increase from around five thousand inmates in 1980 when Ronald Reagen took office. In addition, the federal prison system currently costs taxpayers approximately 6.7 billion dollars a year to house these inmates. [2] A Congressional Budget Office analysis in September of 2014 found that passing a bipartisan bill in Congress to reform mandatory minimum sentences, the Smarter Sentencing Act, would reduce prison costs by $4 billion in just the first decade. The Justice Department projected savings of at least an additional $7.8 billion in the second decade. [3]

 “War on Drugs:” Reagan’s Assault on Drug Trafficking

These dramatic increases in prison populations are a direct result of the Reagan administration’s “War on Drugs.” Under the Reagan administration, federal sentencing guidelines were enacted that led to lengthy sentences for drug traffickers which was the intended goal of the revisions. However, the guideline changes also had the unintended result of placing offenders who only played minor roles in these drug operations, like couriers or “mules,” into lengthy sentences as well. In addition, the tougher laws have done little to slow down the drug trade or curb recidivism, both unfulfilled goals of the tougher criminal laws.

Reduction in Federal Sentencing Guidelines for Drug Trafficking Offenses

All of the factors above led to the revision of the Guidelines which will take effect next month.  In July of 2014, the United States Sentencing Commission voted to apply a reduction in the federal sentencing guideline levels to most federal drug trafficking offenses retroactively, to take effect in November of 2015. The Federal Sentencing Guidelines are criminal law rules that set out a uniform sentencing policy for individuals and organizations convicted of felonies and serious (Class A) misdemeanors in the United States federal courts system.

The Result

The result of this decision is that many offenders currently serving time in the federal penal system could now be eligible to have their sentences reduced. Defendants sentenced in drug cases now have the ability to elect to have their sentence reviewed by the Court and judges now have the ability to review old cases to determine if a sentence reduction is warranted. Judges will review each case independently and determine if a sentence reduction poses a risk to public safety and is otherwise appropriate. The hope is that this long-overdue change will continue to allow the government to prevent and punish narcotics trafficking, allow minor offenders an opportunity to reform and be contributing members of society, and cut costs to the everyday taxpayer.

If you or someone you know thinks you may be eligible for a reduced sentence under the new guidelines, please contact a criminal law attorney or you can email our firm at  clientrelations@hullbarrett.com.

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The author of this piece, Brooks K. Hudson, is a criminal defense lawyer focusing on felony and white collar charges.  Prior to practice at Hull Barrett, Brooks worked at the District Attorney’s Office as an Assistant District Attorney.

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[1] Inmate Statistics – Offenses,” Federal Bureau of Prisons, accessed August 29, 2015,http://www.bop.gov/about/statistics/statistics_inmate_offenses.jsp.

[2] Office of Management and Budget, “Public Budget Database: Outlays,” http://www.whitehouse.gov/omb/budget/Supplemental.

[3] http://thinkprogress.org/justice/2014/09/17/3568232/the-united-states-had-even-more-prisoners-in-2013

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What Beats Employment Attorney Jim Ellington?

Do you know your attorney outside of the legal realm?  What do you get when you push away the motions and legal research?  Attorney Jim Ellington is keeping it PG and confesses to Augusta CEO what beats him outside of the office.

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Gearing Up For Year End Tax Planning

This is Part I in a two part series that discusses charitable giving in conjunction with taxes and estate planning.

Tax Planning to Decrease Income Tax Liability

As we approach the end of the calendar year, many people begin thinking about year-end tax strategies and tax planning that can reduce the income tax bite when filing their tax returns next spring. Those individuals who are inclined to support their favorite charities may find it advantageous to make year-end gifts that not only provide vital support to the organization but help reduce the donor’s income tax liability.

Traditional Giving Patterns

Past giving patterns suggest that religious and educational institutions are the primary recipients of support from donors but other types of organizations, including animal welfare, conservation, and health and medical research, are frequent beneficiaries of tax planning donations. Cash is the easiest way to make a gift and will be welcomed by any organization relying on gifts to keep it operating.

Other Methods of Giving

The gifting of appreciated securities can be very advantageous to both donor and recipient as the donor receives a charitable income tax deduction based on the current fair market value of the assets being donated and escapes the capital gains tax that would otherwise be levied if the assets were sold and the cash proceeds from the sale donated to the charity. The charity can elect to keep the securities or can immediately sell them at current market value and realize the cash proceeds for the organization. Occasionally, more unusual types of gifts are offered to a charity, such as a parcel of real estate. However, a donor cannot expect a charitable organization to blindly accept such a gift without exercising due diligence to determine whether there are environmental issues or whether the real estate is easily marketable for the organization to obtain the cash proceeds from an eventual sale.

Communication with Charitable Organization

Donors are well advised to communicate with their intended charity about their intended gift, especially if a non-cash donation, and work through any issues which may cause the charity to politely decline the opportunity to receive the gift. Charities also like to know about the donor’s intended use of the gift when received by the charity, such as a particular department or program within the organization. As a donor, please engage in a dialogue with the charitable beneficiary if your gift is anything more than a nominal annual donation in support of the charity’s operations.

Making Sure Your Charitable Contribution is Advantageous for Tax Planning Purposes

Your tax, financial and legal advisers are important partners in making sure that the gifts meet both the intent of the donor and the expectations of the recipient. Making both sides of the gifting process satisfied is one of the most rewarding aspects of our practice. We welcome the opportunity to discuss your charitable gifting ideas and provide counsel and advice on the best approach for you and your family.

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Don’t Lose Your Lien Rights Provided By Lien Laws

Don’t lose your lien rights thereby forfeiting your claim of owed payment because of the pitfalls of lien laws.

Picture this. Your company has just completed work on a construction project. Your paid application has been submitted and thirty days have passed without payment. The general contractor has finished the job and has promised a check just as soon as the owner pays. He tells you to be patient; this should all be worked out in a month or two. What do you do?

In Georgia, construction lien laws were enacted to protect construction companies and material suppliers performing work on credit to secure their rights to payment through their right to record and file a claim of lien. When one provides labor, materials, equipment or services to a construction project and they are not paid, the mechanics and materialmen’s lien laws allow them to place a lien on the property improved, thereby providing a secured interest in the property to help ensure payment of the amounts owed. However, lien laws contain numerous pitfalls, any one of which can lead to a lien being deemed invalid and a construction company losing its protection from non-payment. A seemingly harmless mistake in the name of a company or owner involved in the project, a miscalculation of the total amount owed, or an inaccurate description of the property can result in the loss of lien rights and the leverage it provides.

To avoid the hazards associated with the strict requirements of the lien laws, confirm the date that work was completed and calendar 90 days out as the date lien rights expire. If payment is not received within 60 days of completion of work, contact your attorney to ensure they have enough time to obtain and confirm the necessary information and properly prepare and file the lien in the Superior Court Real Estate Records where the job was located. Specific requirements mandating the filing of a lien within 90 days, providing notice to the owner via certified or overnight mail, and commencement of a lawsuit within 365 days of filing all must be strictly complied with in order to avoid having your lien deemed invalid.

Construction liens are an invaluable weapon in a construction company’s arsenal. However, each case varies depending on the facts and different actions are required for different situations. To protect your company’s assets, rely upon an experienced attorney who can assist you in navigating the perils associated with the Georgia lien law statutes.

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“Know Before You Owe” Will Likely Cost Home Buyers More Money

By now, presumably everyone in the residential real estate industry is gearing up for the implementation of TILA-RESPA Integrated Disclosure (“TRID”) and its new disclosure forms – the Loan Estimate and the Closing Disclosure.  The newly adopted bureaucratic regimen is set to take effect October 3 and most in the industry believe the new TRID rules will meet the overall goals of providing home buyers with clearer “know before you owe” information, and do so in a more timely fashion than with current disclosures.

But be forewarned the new requirements may prove costly to borrowers – in both time and money. This is mainly due to the requirement for the Closing Disclosure to be provided to borrowers no later than three business days prior to closing.  The new rules no longer allow for last-minute changes to the settlement statement just prior to and at the closing table.  Rather, any adjustment to the Closing Disclosure would trigger a new three-day waiting period before closing can occur.  The practical effect of this and other TRID rules is that closing dates will be delayed until lenders adjust to the new rules.

Due to these inevitable delays, many believe that the typical 30-day purchase and sale contracts and 30-day rate locks from lenders should be replaced with, at least temporarily, 45-day contracts and 45-day rate locks.  Insofar as purchase contracts are concerned, real estate practitioners on the buy-side should negotiate a closing date that is 45 days from the contract date.  They should also schedule the closing with the title agent or attorney to occur at least 10 days prior to the drop-dead closing date.

As it pertains to rate lock extensions, the answer is not as straightforward.  The standard time provided by Lenders in order to lock in their interest rate on a mortgage loan is 30 days.  In order to extend the rate lock beyond the standard 30-day window, borrowers will be charged a premium.  Some borrowers will resist the urge to pay extra for such protection.  However, in the context of a rising interest rate environment (which seems likely given the Federal Reserve’s recent position on interest rates), it seems prudent to advise buyers to pay a bit more for a 45-day rate lock.  The premium charged for an extended rate lock will ultimately be cheaper than the alternative of paying a higher interest rate over the life of the loan.

More will be known after next week when TRID goes into effect, but be prepared for extended purchase and sale contracts and changes in rate lock timing.

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