As most of my listeners know, I love to keep up with what's going on in technology, and even more so, if it's legal technology. While I couldn't be at LegalTech New York this week, I am watching the posts, tweets and articles written by the myriad of people who are attending. On such blog post discusses cloud computing and why we aren't quite "there" yet:
Continue Reading...Social media includes such Internet applications as Facebook, Twitter, LinkedIN, MySpace and blogging. When people started using such media, many thought it was purely for personal reasons and basically ignored its business implications. That is no longer true. In fact, with hundreds of millions of people using social media, it is rapidly the phone and even email as a primary form of communication.
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When a business is sued, it should report the action to its insurance company, as soon as possible. Sometimes, an insurer will deny coverage of the claim, asserting that a certain exclusion in its policy is applicable, or other policy defenses.
In Wisconsin, however, this is not necessarily the end of the story. If there is any possibility that coverage may exist given the terms of the claim made against its insured, the insurer is required to provide its insured with a defense attorney at its cost, and seek a stay of the action while the court determines whether it owes coverage under its policy. It's failure to do so may result in it being held liable for the claim and its insured's defense costs, regardless of whether coverage actually exists under the policy.
Continue Reading...For decades, the US Government and 24 states have had laws regulating corporate spending to support or oppose candidates running for office. In a most extraordinary US Supreme Court case decided on Thursday, January 21, 2010, justices overruled parts of a 63 year old law which prohibited businesses and unions from producing and running their own campaign ads.
Continue Reading...As a business "deal" is coming together, the parties often wrestle over whether to start the documentation with a "letter of intent" (LOI) or simply proceed to the actual contracts. While different situations demand different answers to that question, here are some important considerations with respect to what may work best for you.
Using a LOI has the advantage of usually being much less costly, quicker and simpler to draft. While it usually only sets forth the basic terms of an agreement, it is usually not a binding contract, except for certain provisions, such as confidentiality provisions that are intended to protect both parties and take them back to their respective starting points without damage, should the deal fall through.
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For over 50 years, Wisconsin has been deciding cases related to covenants not to compete in working relationships under Wisconsin Stat. § 103.465. On July 14, 2009, in an opinion authored by Justice Michael J. Gableman, Wisconsin’s Supreme Court changed the way that statute will work, much to the benefit of employers. Here’s what they did.
Continue Reading...A recent Court of Appeals case, Town of Cross Plains v. Kitt's Korner, Inc. 2008AP546 illustrates the risk involved in opening a new business on the assumption that a possible change in zoning will not effect its operation if the business is already up and running.
In that case, an adult entertainment business was opened on a parcel which, at the time it commenced operation, was zoned in such a fashion that such a business was not a prohibited use. The owner of the business naturally incurred costs in the start up of the business. The owner was aware of the fact that an ordinance amending the zoning to prohibit such a business on the land in question was coming up for vote, but apparently believed that his expenditure, and the actual operation of the business for a period of time prior to any adoption of the proposed ordinance, would create a situation in which his business would be "grandfathered in" even if the amendment to the zoning ordinance was adopted.
Although the law does recognize that, in certain fairly rare circumstances, expenditure of funds based on a reasonable reliance that zoning will not be changed can create vested rights which will not be impacted by zoning changes, the Court of Appeals held in this case that there could be no reasonable reliance because the owner was aware of the pending vote on the ordinance amendment, but chose open the business regardless. Expenditures made were made despite the fact that the owner new that zoning prohibiting the business was contemplated and could be adopted.
When opening a business, it would be prudent not only to review current zoning, but also to inquire whether any modifications in zoning are being considered.
In a recent decision, Harvot v. Solo Cup Company, 2009 WI 85, the Wisconsin Supreme Court determined there is no right to a jury trial under Wisconsin's Family and Medical Leave Act.
The Court rejected the argument that a jury trial should be provided in Wisconsin because it is available under the Federal Act, noting that the Wisconsin Act is different in several respects from the Federal version. It noted that the Wisconsin Act does not expressly provide for jury trials, and held that such a right cannot be implied. Finally, it determined where no jury trial is provided for by statute, a constitutional right to a jury trial exists in Wisconsin only as to causes of action recognized in the common law prior to adoption of the Wisconsin Constitution in 1848.
Employers faced with a civil action for damages based on Wisconsin's Family and Medical Leave Act therefore will not have to face a jury, which may be more influenced by emotion and sympathy for a plaintiff than a trial judge.
In a recent decision, Star Direct, Inc. v. Del Pra www.wisbar.org/res/sup/2007ap000617.htm the Wisconsin Supreme Court determined that where an employment contract contains restrictive covenants which address separate specific interests of employers, the fact that one of those covenants is overbroad and therefore illegal does not necessarily render other covenants unenforceable.
The contract in that case contained provisions restricting the employee from engaging in business similar to that of the employer, restricting him from contacting past and present customers of the employer, and requiring the employee to hold certain information derived from the employer confidential. The court determined that the covenant restricting the employee from engaging in similar business was overbroad, but that the other covenants addressed separate legitimate concerns of the employer which would remain enforceable. Therefore, those covenants are divisible from the invalid covenant.
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According to Section 19.36(3) of the Wisconsin Statutes, the records of those entering into contracts with government constitute public records, and therefore open to public inspection upon request, subject to specific exemptions set forth in the law. As governments generally, and particularly local governments, look more and more to private contractors to perform or assist in performing public services, businesses that enter into such agreements must be aware of the ramifications of this statute.
This statute has not been construed to apply to any record of a public contractor, but rather to records which are specifically related to performance of the contract. As those records are deemed public records, they should not be destroyed except in accordance with the law (normally, public records are to be retained at least 7 years). Also, since such records are, in effect, presumptively open for inspection by the public, businesses which contract with government must understand that a public records request applicable to such records may be used as an informal discovery device by parties seeking to make a claim against the business or the government.
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