Civil Litigation Archives | Page 8 of 31

Consumer law comprises the group of laws that protect the public at large from dishonest and exploitative business practices. Consumer laws offer the public protection from corrupt ways of conducting business. These laws require compliance from the corporations under its purview.

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What does Consumer Law Regulate?

The practice of consumer law involves protecting people from unfair trade, incorrect information, and unscrupulous ways of conducting business. For most people, the phrase “consumer law” pertains to only banks and fair debt collection practices.

But in reality, consumer laws control a wide range of industries. Some significant areas of federal consumer protection legislation are:

Federal Food, Drug and Cosmetic Act

The Act provides the federal government the authority to manage a wide array of products ranging from drugs and food to tobacco. The Food and Drug Administration has the authority to require consumers to procure a prescription from a medical practitioner to access specific drugs.

Fair Debt Collection Practices Act

This legislation was passed in 1977 and places restrictions on the actions of debt collectors such as disallowing debt collection in the middle of the night or making harassing phone calls.

Fair Credit Reporting Act

The Fair Credit Reporting Act requires businesses to report details on individual credit reports correctly. Consumers can see a copy of their credit report free-of-cost. Inaccurate information in a report can be disputed through a formal process.

Truth in Lending Act

Lawmakers wanted to make sure that creditors fairly and transparently make loans and extend credit when they passed the Truth in Lending Act in 1968. Lenders must employ standardized costs while lending.

Fair Credit Billing Act

The Fair Credit Billing Act offers consumers protection against questionable billing practices. For instance, a consumer can dispute credit card charges that were not made by them.

Gramm Leach Biley Act

This Act was passed in 1999 and is also known as the Financial Services Modernization Act. It enables banks to consolidate and provide more extensive services to customers than was possible earlier.

Consumers tend to save in a weak economy and invest in a robust one. Therefore, this Act enables financial institutions to offer savings as well as investment services.

Products Liability Claims

Along with laws that regulate corporate behavior, there are legal actions as well that exist in statutory and common law. A product liability claim is when a person brings a claim against a company due to a defective product.

A person who experiences an injury or other losses by using a defective product can file a claim for compensation. They may seek compensation for financial loss, pain and suffering, and other losses. The three theories of product liability cases are as follows:

Failure to Warn

The business did not properly warn the consumer regarding the perils associated with the product.

Defective Design

The product was designed in a manner that it was likely to cause harm. The company could have developed a better product design.

Manufacturing Defect

There was an oversight in the manufacturing process that led to a defect in a particular product.

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Constitutional law pertains to the interpretation, implementation, and amendment of the US constitution as well as the constitutions of the 50 states. The main focus of constitutional law is the interpretation, meaning, and limitations of the constitution.

With changes in social and political issues in the US, attorneys practicing constitutional law bring these issues in front of courts to seek clarification regarding the meaning, interpretation, and implementation of the constitution.

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The US Constitution

The US Constitution was ratified by the founders in 1787 and was a consequent of a debate on the proper role of the government in a free society.

Some believed that the predecessor Articles of Confederation did not provide the federal government sufficient power to conduct business. Ultimately, the US constitution was a compromise between various competing philosophies and interests within the society at the time the document was drafted.

The constitution has undergone many amendments through the years, yet it remains the primary document governing the US government. The constitution provides the federal government power in three branches:

The legislative branch (law creation)
The executive branch (law implementation and making treaties)
The judicial branch (law interpretation)

Furthermore, the constitution defines the relationship between the federal government and the states. Lastly, the constitution defines the relationship of an individual to the federal government.

Significant Areas of the Constitution and its Interpretation

Due Process

Due process is based on the idea that the government cannot take an individual’s liberty or property in the absence of a fair judicial procedure. A person who is accused of a crime has the right to have reasonable notice of the charges levied against them and a chance to be heard in the matter.

They possess the right to a fair jury or judge in their case as well as the right to cross-examine witnesses and the opportunity to engage a lawyer. Courts must have records of proceedings and publicly declare the reasons for their verdicts.

Freedom of Speech

The government cannot unduly restrict the people’s right to speak, assemble, and practice religion. It can place only limited time and place constraints on speech. In case they place restrictions, these must apply consistently to everyone.

Constitutional attorneys continue to challenge restrictions on free speech while courts continuously struggle with balancing the private right to speech and expression and legitimate public interests.

Commerce Clause

A significant part of the legislative authority of the federal government comes from the commerce clause of the constitution. The federal government can only control an industry if the industry affects or has the potential to affect interstate commerce.

One of the most litigate parts of the constitution is the commerce clause. In general, the Supreme Court has a broad and expansive interpretation of the commerce clause.

The court decides in the Swift v. United States (US 1905) case that the government can control an activity or industry as long as the stipulation affects something that will eventually become a part of the stream of commerce.

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Business organization law refers to the body of law that is responsible for the creation, management, and dissolution of businesses.

There are various ways to organize businesses, and each type of company structure involves a specific set of rules to be followed. Each type of business structure has its own benefits and limitations as well.

The scope of work of a business attorney involves determining the correct business structure for their client, completing paperwork filing, managing any organizational problems, and helping to dissolve the business if required.

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Assisting Clients to go into Business

Starting a new business involves determining the business structure and filing the necessary paperwork. The business founders rely on business organization attorneys to assist them in assessing the advantages and limitations of each possible business structure.

Furthermore, they seek help from their attorneys to draft the required paperwork and file it properly with the state.

Types of Business Structures

The state where the business intends to file will determine the type of business structure that a new organization can choose from. In most states, new entrepreneurs can choose from the following types of business organizations:

Sole Proprietorship

A sole proprietorship is a company owned by a single person. This structure offers the owner full control. However, sole proprietorship also makes the owner personally and financially liable for the operations of the enterprise.

Corporation

A corporation refers to a business structure that is fully independent of its owners. A corporation can undertake most business-related functions similar to a person, such as entering into contracts, purchasing and selling products, and hiring personnel. The business founders will need to draft articles of incorporation to start a corporation.

Limited Liability Corporation or Limited Liability Company

A Limited Liability Corporation or Limited Liability Company offers some of the advantages of small business ownership such as legal protection for liabilities and debts and pass-through taxation.

S Corporation

This business entity is a type of corporation with distinctive characteristics. S Corporation owners can report profits and losses on their personal tax returns. They have limited liability and usually avoid double taxation which is possible with traditional corporations.

Partnership

Partnerships are quite similar to sole proprietorships. However, more than one person is involved in this business structure. A partnership usually begins by filing papers with the state and cautiously defining the partnership terms.

Charities

An individual or group may be interested in organizing a charity to limit the legal liability for the organization’s work and to avoid taxation liabilities that are applicable to corporations. In order to properly start a charity, there may be requirements at the state and federal levels.

Most Business Organization Law is State Law

Primarily, state laws determine business organization. Each state can decide the types of business entities that are permissible and the regulations associated with those entities.

After a company is set up, there may be local and federal regulations to comprehend and follow. But at the inception level, business organization regulations fall mainly within the state of the business’s location.

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Need a Bankruptcy Attorney?

The focus of bankruptcy laws is to help people solve and repay their debts after incurring substantial losses. There were bankruptcy laws in the US as early as 1800. But the first voluntary bankruptcy regulations were allowed through the Acts of 1841 and 1867.

These acts, in addition to the Bankruptcy Act in 1898, also known as the Nelson Act, form the foundation of our present debtor/creditor relation system.

A common phrase heard in the context of a person facing adverse financial circumstances is that they may “declare bankruptcy.” But what do bankruptcy proceedings comprise in the US and how are lawyers involved in the process? It is useful for a business owner to know the basics.

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Where do bankruptcy laws originate from?

Title 11 of the United States Code outlines the federal bankruptcy laws. This law governs almost all bankruptcy proceedings. More specifically, there are three common types of bankruptcy proceedings. While Chapter 7 of the Code is applicable to individual procedures, Chapter 11 proceedings are meant for enterprises.

Lastly, Chapter 13 proceedings govern people who earn wages. Under this Chapter, petitions request the court for more time to enable a debtor to pay off their liabilities while earning a stable income.

What do bankruptcy attorneys do?

Bankruptcy attorneys may operate on behalf of the debtors (the person or enterprise who is liable for the debt) or creditors (the people or business entities to whom a debt is owed).

The goal of a bankruptcy proceeding is to be beneficial to the debtor as well as the creditor, by allowing debtors to start afresh financially and enabling creditors to feel satisfied. Bankruptcy attorneys for both parties work towards achieving this objective.

A routine day for a bankruptcy lawyer may include drafting motions and proceedings to be filed in court and developing responses to motions and other filings. Bankruptcy attorneys review and engage in discovery documents as well as attend meetings with clients and opposing parties to discuss the ideal path to move forward.

The court will hear motions in bankruptcy cases, and the attorneys will have to be adequately prepared to argue them. But junior lawyers in bankruptcy law practices may not always be able to argue these motions in court. This is typically undertaken by more experienced lawyers.

Bankruptcy lawyers perform various tasks, and this requires a wide range of skills. These attorneys have in-depth knowledge of the Bankruptcy Code along with strong legal research and writing skills.

Bankruptcy lawyers also need to have strong interpersonal skills since they will be communicating with clients and negotiating with the opposing parties as well. Their judgement pertaining to these matters needs to be acute and based on sound information and precedent.

These lawyers must be prepared to argue motions filed in court at any time and should have a detailed understanding of the filings involved along with excellent oratory skills.

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Appellate Law

A trial may not be the end of a case, and one or both parties may want to appeal a part or the full trial decision. In addition, they may want to appeal specific parts of the proceedings of the lower court that may have prompted the jury or the court to arrive at a wrong verdict.

An appeal is the process of asking a higher court to reassess a judgment made by a lower court or an administrative agency, and appellate lawyers are the attorneys who assist clients in pursuing or defending an appeal.

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The Review Process

The appeals court reviews the decision by the lower court to understand if they made an error. The appeals court does not start a new trial or accept new evidence. Rather, they evaluate the record from the lower court.

A review of the record may involve viewing pieces of evidence, reading a transcript, and understanding the arguments of both parties. In addition, a higher court may listen to verbal arguments where they can question the lawyers representing the parties.

At times, the reasons for an appeal are apparent. However, in some cases, a lawyer must identify the issues and assess their worth. A sagacious appellate lawyer must be aware of how to identify the specific aspects that may form grounds for an appeal.

An appellate law attorney will need to prepare the appeal and compile the required supporting documents when they advocate for the client bringing the appeal. If the lawyer is working for the responding party, they will need to compile and file an appropriate response.

Administrative Reviews

All appellate work does not initiate in a lower court. A large number of hearings and decisions from the state as well as federal agencies occur at administrative hearings.

For instance, if a person is contesting an unemployment benefits denial, the proceedings will likely begin in front of an administrative hearing officer. This also holds true for a hearing on food stamps benefits eligibility or challenging a license suspension from the state department of motor vehicles.

In a majority of cases, you can bring an action in court to review the verdict if you do not agree with the hearing officer’s decision. On occasion, the judicial branch will start an entirely new trial with evidence. At other times, the appellate court may review the administrative record.

The Purpose of Higher Courts

Appellate courts serve many purposes. Firstly, lawmakers want to offer citizens a consistent justice system throughout a state and country. They do not want to give complete power to an individual judge.

An appeals process offers the litigant a possible course of action in case the lower court does not provide the correct verdict. The appeals process is a measure of accountability for the trial judges.

Sometimes there can be an honest oversight by the judge. In such cases, higher courts help rectify these mistakes. Litigants have access to justice as well as a fair and consistent rule of law with the possibility of error correction.

Finally, higher courts offer legal interpretations in ways that have an effect on society as a whole.

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Have any legal questions? Contact SBEMP:

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Antitrust law refers to the extensive category of federal and state laws that aim to ensure that enterprises operate honestly and fairly. The objective of these laws is to create a level playing field in the free market and disallow organizations from wielding excessive power.

Antitrust law perceives a trust as a large group of companies that work with each other or in combination to create a monopoly or control the market. The Interstate Commerce Act of 1887, the Sherman Act of 1890, the Federal Trade Commission Act of 1914 and the Clayton Act of 1914 are the most significant antitrust laws in the US.

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Need for Antitrust Laws

Antitrust laws disallow companies from indulging in specific activities aimed at developing monopolies. These regulations prohibit what some people perceive as deceptive trade practices that companies may want to employ to stay ahead of the competition. In other words, antitrust regulations forbid companies from using dirty poker to beat the competition.

What do antitrust laws disallow?

Antitrust regulations do not ban a company from holding a large market share if they achieve this by legitimate means. These laws ban any acts that are aimed at developing a monopoly using unfair strategies. The courts use the “rule of reason” test to establish whether an activity is illegal. They consider the business decision’s impact on the market.

Laws and court cases offer more direction

Courts offer more direction on the types of behaviors that constitute antitrust contraventions as government bodies, and private entities bring lawsuits against alleged violators.

The courts state that specific acts such as group boycotts, group agreements, or price fixing to control business activities in particular markets amount to antitrust activity by default. But no two cases are identical. In every case, the court has to understand exactly what transpired and arrive at a decision.

The Sherman Act is the fundamental law that disallows antitrust behavior. Courts can hand out civil and criminal penalties including up to ten years imprisonment and a fine of $1 million for each offense. Companies can also be levied with a fine that amounts to twice the amount of profits that they garnered from the illegal activity.

The Clayton Act, which is an antitrust Act that emerged soon after the Sherman Act, specifically identified unlawful behaviors. For instance, the Clayton Act disallows an intermingled directorship where one individual is in charge of making business decisions for two or more rival entities.

How does an organization know if they are contravening an antitrust law?

It is not always apparent on the surface whether a company is in violation of antitrust law. This aspect involves the specificities of each case. The courts and regulating bodies have to understand the facts of the case to arrive at a decision.

It is a wise move for companies to seek reliable legal counsel as they strategize significant changes such as mergers and acquisitions to ensure that they remain on the right side of antitrust laws.

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While advertisement is universal, many people are unaware that there are laws and stipulations that govern the manner in which corporates may or may not legally advertise.

Advertising law attorneys operate behind the scenes and assist companies through law firms or in-house counsel to ensure that they follow the rules of legal and ethical advertising.

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Advertising laws origins

The Federal Trade Commission (FTC) sets forth the rules and regulations that govern a majority of marketing and advertising law in the US. These stipulations seek to ensure that advertising is honest and fair, and can impact the functioning of companies in various ways.

The FTC requires advertising claims to be “evidence-based.” This means that advertising cannot be misleading or false.

These rules are applicable to marketing and advertising strategies across all mediums, such as digital and telemarketing campaigns. They apply to general product claims and health-specific claims regarding the effectiveness of a product.

Functions of advertisement lawyers

Most lawyers pursuing a career in advertising law will work alongside corporate entities offering them guidance and advice to make sure that they are always within the purview of advertising rules and regulations.

These profound attorneys must possess in-depth knowledge and comprehension of advertising rules and regulations and sound legal research skills to understand new issues as they surface.

Advertising law attorneys go over product labels, ads, and claims make by the firm and recommend changes if required. In this regard, it is vital to have a detailed understanding of the kind of claims that contravene the “truthfulness” specifications set forth by the FTC and other advertisement laws.

But not all attorneys working with advertising law operate on behalf of the company. Enforcement is the other side of the equation, and this comprises lawyers who work to bring either criminal or civil penalties against corporates that contravene advertisement law.

It may be challenging to build a career in advertising law enforcement. However, many careers with the criminal justice system or regulatory boards involve cases centered on advertising law.

Where do advertising lawyers work?

There are many options for lawyers seeking to pursue a career in advertising law in terms of job placement. Some private law practices have advertising law departments where they employ attorneys with expertise in advertising and marketing law. These proven attorneys will work with various clients, typically companies, to monitor their advertising processes and offer advice.

However, these positions are still a rarity, and a majority of smaller law practices do not have a separate advertising law department. It is best to search for opportunities in advertising law at a few major cities, such as New York or Washington DC, where such positions may be available.

Advertising law is an expanding field which involves the omission and enforcement of advertising laws in the US. In general, advertising attorneys will be in high demand as long as advertisements continue to be prevalent in the world of business.

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Frank Burgess, a resident of Banning, was awarded over $200,000 in legal fees after a court determined that the California Fair Political Practices Commission had overstepped on his constitutional protections on the matter of a fine levied against him as a member of a nonprofit hospital board.

John Pinkney, Burgess’s attorney, stated that the case is very significant as Mr. Burgess contested the FPPC for years over this matter. Pinkney, who is also the attorney for Beaumont, believes this is the first ruling of its kind against the commission for violating due process.

The communications director of the commission, Jay Wierenga, refused to comment.

What is FPCC?

The FPPC comprises five members and is a non-partisan commission which is responsible for the implementation of the Political Reform Act. This act regulates campaign financing, lobbying, conflict of interest, and governmental ethics.

The FPPC conducts enquiries into claims of wrongdoings and usually fines candidates and elected officials who violate the rules.

History of the Case

In 2010, 84-year-old Burgess was fined $5,000 over what the commission determined to be a conflict of interest.

A former Banning City Council member, Burgess, could have chosen to pay the fine and save himself from spending many years and significant amounts in lawyer fees in long-drawn court battles. But he says he was brought up with values to the contrary.

He stated on Thursday, Sept. 6 that paying the fine would be an admittance of being dishonest, which is something he could not bring himself to do.

Pinkney described this as a Henry David Thoreau moment.

The attorney elaborated that Burgess decided that he would stand his ground and protect the Constitution.

Burgess was fined for trying to convince other members of the nonprofit board of the San Gorgonio Hospital to carry on doing business with a moving and storage company owned by his son.

In the court, Pinkney argued that the Political Reform Act did not include members of a non-profit board.

Fine Overturned, Compensation Awarded

Riverside Superior Court Judge Craig G. Riemer has overturned the fine and agrees with Burgess’s claim that he has been denied due process as he did not have any advance warning that he was a public official.

In addition, Burgess was awarded compensation for legal and other fees. The FPPC has appealed this compensation award.

Justice Richard T. Fields of the California Fourth District Court of Appeals, Division Two, gave an unpublished opinion upholding the $221,166 in attorneys’ fees and costs as well as other appeal-related costs and fees which were awarded to Burgess.

The ruling stated that Burgess had suffered a violation of his right to due process by being levied a fine for a rule that he did not break as the foundation board was not considered to be a government body.

Burgess was on the Banning City Council from the year 1970 through 1978 and then again from the year 1980 through 1984. He was also appointed to the San Gorgonio Hospital Board which comprised five members and the separate 13-member nonprofit foundation board. He served on these boards from 2009 to 2011.

Key Points Raised by Pinkney

Pinkney explained that the rules pertaining to members of elected boards did not apply to the board members of a nonprofit organization, such as charities or foundations.

He further highlighted that no existing law directed that the board was subject to the Political Reform Act, and it was a case of wrong handling by the FPPC right from the beginning.

For more information or to request a consultation please contact the law offices of SBEMP (Slovak, Baron, Empey, Murphy & Pinkney) by clicking here.

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The fundamental right of due process is essential to a free society. When Frank J. Burgess was unfairly accused and penalized without warning by the Fair Political Practice Commission (FPPC) while sitting on a non-profit board, he took it upon himself to challenge the FPPC Decision to protect the sacred right of due process for the greater good of the public at large. After three years of litigating this matter both at the administrative level and in superior court, Mr. Burgess’ efforts have finally been validated, with the help of SBEMP.

Click to read the full story: https://www.pe.com/2018/09/07/banning-man-wins-220000-from-state-political-watchdog-panel/

For more information or to request a consultation please contact the law offices of SBEMP (Slovak, Baron, Empey, Murphy & Pinkney) by clicking here.

Administrative law refers to the body of law and legal work that encompasses government agencies. Government agencies implement these laws to perform government functions.

These agencies are responsible for creating, implementing, and enforcing various regulations. Administrative law covers all matters related to these activities.

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A Diverse Area of Law

Administrative law is a broad term that covers various types of law. An attorney practicing administrative law may never need to visit a courtroom. Conversely, another administrative lawyer may spend a significant part of their practice lodging legal documents and arguing cases in a formal setting.

Some administrative attorneys spend a vast majority of their time drafting documents, while others experience a lot of public interaction. Effectively, an administrative lawyer is a person who carries out government work or works with government regulations.

Where does administrative law come from?

Administrative law originates in a legislative body. These bodies are the US Congress at the federal level, state representatives at the state level, and local councils and county commissions. These organizations create law either directly or by forming an agency tasked with law creation.

After the legislative body creates the law or forms the agency, the agency is tasked with implementing the law or creating rules.

The Administrative Procedures Act

The U.S. Administrative Procedures Act lays down rules and guidelines for the manner in which administrative agencies must function. The 1946 federal law comprises stringent procedures that administrative agencies must follow while carrying out their work.

The law aims to ensure that administrative agencies are transparent as well as accountable to the public. Lawmakers believe that people should be aware of the operations of the agencies. Furthermore, lawmakers believe that it is advantageous and desirable for the people to be able to provide input into the functioning of these agencies.

Who practices administrative law?

Working for the government

Administrative attorneys can be public as well as private lawyers. Public attorneys operate in a vast array of disciplines within a government agency. Private lawyers may also work for a government agency on a contract basis instead of as an employee, for instance, an attorney offering legal advice to a county sheriff’s department or a town council.

Working on behalf of private clients

Attorneys practice administrative law on behalf of private clients as well. For instance, they may offer assistance to a client in navigating administrative procedure to ensure that they successfully make a specific claim to an agency.

A salient and focused lawyer helping a client make an appeal before a state driver’s license appeal board to have their driver’s license reinstated is an appropriate example of attorneys practicing administrative law on behalf of clients.

They may assist a client in initiating formal court proceedings after the administrative remedies have been exhausted. Moreover, in cases on action to challenge the constitutionality of a law or the legislative authority for a rule or regulation, an administrative law attorney might represent a private client.

Skilled and prudent lawyers at the SBEMP law firm serve clients from Palm Springs, Palm Desert, Rancho Mirage, Inland Empire, Orange County, San Diego, New Jersey, New York, and nearby locations for a range of legal practice areas.

For more information or to request a consultation please contact the law offices of SBEMP (Slovak, Baron, Empey, Murphy & Pinkney) by clicking here.