by: John Mei
According to the December, 2007 Visa Bulletin foreign workers falling in the EB-3 category and EB-2 workers from Mainland China and India will be affected by a severe backlog of visa numbers. This means there are more individuals wishing to immigrate than there are allotted visas. As a result, foreign workers in the effected categories may have a wait time exceeding 5 years before they are able to file an application to adjust status to that of a permanent resident.
Filing a New Labor Certification as an EB-2
The same employer who had filed an EB-3 application for a foreign worker may file a new labor certification for EB-2 classification for the same foreign worker if the job offer as an EB-2 is bona fide and the foreign worker possesses the requisite educational and employment experience that meets the criteria for EB-2 classification.
If there is a bona fide job offer as an EB-2 and the foreign worker is qualified, filing a new labor certification as an EB-2 may eliminate or dramatically reduce their backlog wait time. This may be especially advantageous for employers who have already filed and have an I-140 Visa Petition approved for a foreign worker. If the I-140 for EB-3 classification has already been approved, the foreign worker may seek to retain the old priority date on the new I-140 as an EB-2.
Filing a New Petition as an EB-1
A petition for EB-1 can be filed for aliens of extraordinary ability, multi-national executives and managers, and outstanding researchers or professors. Though rare, we have seen cases that should have been initially filed as EB-1s instead filed as EB-2s, or EB-3s. Those individuals may wish to file a new visa petition as an EB-1 to avoid the backlog. Those with EB-2 or EB-3 I-140 Visa Petitions already approved can seek to retain the priority date of the initially approved I-140.
Individuals may be tempted to file a new petition in an attempt to circumvent the backlog. However, a new petition should not be filed unless there is real merit to warrant such a filing. As such a careful examination of your current job duties and its requirements should be made in contrast to the job duties and requirements on which the first petition was based.
No Downside
Many employers and foreign workers have expressed concerns that a new petition may jeopardize their approved visa petition. However, a new labor certification and visa petition as an EB-2 represents a new job offer that is separate and apart from the job offer that supported the EB-3 labor certification and visa petition.
In the case of filing a new petition as an EB-1, one is merely filing a petition seeking benefits in a classification they qualified all along, but had instead chosen to file the initial labor certification and visa petition as an EB-2 or EB-3. There is no risk to the approved visa petition if there is a legitimate step up in job duties, job requirements, and the foreign national qualifies for the new position as an EB-2 or if the foreign worker could have initially filed as an EB-1, but did not.
Finding The Best Connecticut Accident Lawyer
by: Stu Pearson
When it comes to finding the best Connecticut Accident Lawyer, remember that this person will be the one responsible for getting or preserving your rights when you’ve encountered accidents or disasters. This person will be very significant to you, and it is so important to make your choice carefully and with a lot of thought and research. Once you find the right Connecticut Accident Lawyer for your case, you can relax and focus instead on your daily routine.
There are various techniques and strategies that can help you hire a Connecticut Accident lawyer. Start by understanding the type of case you have, and the type of services offered by various lawyers.
Choose the Connecticut Accident Lawyer who puts much of his or her practice into the areas that represent the case you have. Do not hire a lawyer that keeps asking you questions and not paying attention to what you want or expect. With this type of lawyer, you can easily run into more problems and misunderstandings that are sure to harm you in the long run.
You might want to consider asking friends or business associates for recommendations of lawyers who work in your area. The more people you talk with, the better. But be sure you choose sources that are reliable and willing to help. It is also good to collect your own data and information on how anyone who is recommended works, including their levels of performance, rankings and credentials. After you have gathered some of this information, you can check their web site to do some added research on the firm.
When you find someone you like, it is much better if you meet face to face. Be on time and prepared for this meeting. Ask them how their process works, and don’t hesitate to question how he or she can contribute to your welfare.
Study and examine each lawyer you are considering using this same process. Subsequent reviewing and research will help you narrow down the choices so you can find the lawyer who is really right for you. Through this, you’ll be able to choose the Connecticut Accident Lawyer who will work with you and take care of you and your needs in the courtroom.
When it comes to finding the best Connecticut Accident Lawyer, remember that this person will be the one responsible for getting or preserving your rights when you’ve encountered accidents or disasters. This person will be very significant to you, and it is so important to make your choice carefully and with a lot of thought and research. Once you find the right Connecticut Accident Lawyer for your case, you can relax and focus instead on your daily routine.
There are various techniques and strategies that can help you hire a Connecticut Accident lawyer. Start by understanding the type of case you have, and the type of services offered by various lawyers.
Choose the Connecticut Accident Lawyer who puts much of his or her practice into the areas that represent the case you have. Do not hire a lawyer that keeps asking you questions and not paying attention to what you want or expect. With this type of lawyer, you can easily run into more problems and misunderstandings that are sure to harm you in the long run.
You might want to consider asking friends or business associates for recommendations of lawyers who work in your area. The more people you talk with, the better. But be sure you choose sources that are reliable and willing to help. It is also good to collect your own data and information on how anyone who is recommended works, including their levels of performance, rankings and credentials. After you have gathered some of this information, you can check their web site to do some added research on the firm.
When you find someone you like, it is much better if you meet face to face. Be on time and prepared for this meeting. Ask them how their process works, and don’t hesitate to question how he or she can contribute to your welfare.
Study and examine each lawyer you are considering using this same process. Subsequent reviewing and research will help you narrow down the choices so you can find the lawyer who is really right for you. Through this, you’ll be able to choose the Connecticut Accident Lawyer who will work with you and take care of you and your needs in the courtroom.
Keep a Secret - It's the Law!
by: Laura Adams
Trade-secret law has become more important as our modern workforce has become more mobile. The law is necessary to protect the owners of proprietary company information.
A trade secret is company information you have that's not readily available to the general public. It's knowledge you've gained about what gives your company a competitive advantage over other businesses within the industry.
Anything that makes a company unique or that a competitor would find valuable in creating a competitive advantage may be considered a trade secret.
When changing employers, especially within the same industry, you need to give some thought to the trade secrets that you posses.
A trade secret can take on many different forms such as the following:
- Customer lists
- Product formulas
- Operational processes
- Sales techniques
- Pricing
- Software
To determine what is or is not a trade secret, the following criteria must be considered:
1. the extent to which the information is known outside the company
2. the amount of resources spent to create or develop the information
3. the ease of duplicating the information
4. the value of the information to the business owner and competitors
5. how much effort is made within the company to keep the information secret
Many employers ask employees to sign an agreement called a Non-Disclosure Agreement, or NDA, immediately upon hire. The purpose of these agreements is to inform workers about what is considered a trade secret within the business.
An NDA specifically restricts the disclosure or use of trade secrets during and after employment. But most U.S. states prohibit the misuse of trade secrets, even if you did not sign a Non-Disclosure Agreement.
Unauthorized use or disclosure of an employer's trade secrets is unlawful in most states during and after employment. So, even if you are fired from a job, you can not disclose your former employer's trade secrets to competitors or to a new employer.
If a former employer can prove that an ex-employee's new job will lead him or her to rely on their trade secrets, a court can enjoin the employee from working for a competitor for a limited period of time.
One example is the case of a former PepsiCo employee who was privy to confidential marketing plans for distribution and pricing of one of their drink products, All Sport. He went to work for Quaker Oaks, who sold Gatorade.
A court found that the former employee would have to rely on PepsiCo trade secrets and prohibited him from working at Quaker Oaks for 6 months.
The theft of trade secrets is a serious matter that carries the risk of civil as well as criminal penalties.
Under the Economic Espionage Act, an individual can be prosecuted under federal law with penalties of 15 years in prison and $500,000 in fines and restitution.
Trade-secret law has become more important as our modern workforce has become more mobile. The law is necessary to protect the owners of proprietary company information.
A trade secret is company information you have that's not readily available to the general public. It's knowledge you've gained about what gives your company a competitive advantage over other businesses within the industry.
Anything that makes a company unique or that a competitor would find valuable in creating a competitive advantage may be considered a trade secret.
When changing employers, especially within the same industry, you need to give some thought to the trade secrets that you posses.
A trade secret can take on many different forms such as the following:
- Customer lists
- Product formulas
- Operational processes
- Sales techniques
- Pricing
- Software
To determine what is or is not a trade secret, the following criteria must be considered:
1. the extent to which the information is known outside the company
2. the amount of resources spent to create or develop the information
3. the ease of duplicating the information
4. the value of the information to the business owner and competitors
5. how much effort is made within the company to keep the information secret
Many employers ask employees to sign an agreement called a Non-Disclosure Agreement, or NDA, immediately upon hire. The purpose of these agreements is to inform workers about what is considered a trade secret within the business.
An NDA specifically restricts the disclosure or use of trade secrets during and after employment. But most U.S. states prohibit the misuse of trade secrets, even if you did not sign a Non-Disclosure Agreement.
Unauthorized use or disclosure of an employer's trade secrets is unlawful in most states during and after employment. So, even if you are fired from a job, you can not disclose your former employer's trade secrets to competitors or to a new employer.
If a former employer can prove that an ex-employee's new job will lead him or her to rely on their trade secrets, a court can enjoin the employee from working for a competitor for a limited period of time.
One example is the case of a former PepsiCo employee who was privy to confidential marketing plans for distribution and pricing of one of their drink products, All Sport. He went to work for Quaker Oaks, who sold Gatorade.
A court found that the former employee would have to rely on PepsiCo trade secrets and prohibited him from working at Quaker Oaks for 6 months.
The theft of trade secrets is a serious matter that carries the risk of civil as well as criminal penalties.
Under the Economic Espionage Act, an individual can be prosecuted under federal law with penalties of 15 years in prison and $500,000 in fines and restitution.
Who is Subject to Jurisdiction of the United States Military Court Martial
by: Michael Waddington
Military Jurisdiction
Generally, court martial jurisdiction is only exercised over active service members.1 As long as a service member is on active duty, he or she is subject to the UCMJ. Jurisdiction normally ceases when the service member receives a valid discharge certificate. A Reservist is only subject to court martial jurisdiction when the offense was committed while on active duty or in an inactive duty training status. Meanwhile, Army National Guard of Air National Guard personnel are only subject to the federal military justice system while they are performing federal service.2
Worldwide Jurisdiction
The UCMJ has worldwide jurisdiction.3 The system was designed to travel anywhere the American military deploys. Currently, in Iraq and Afghanistan, courts martial proceedings are conducted in a variety of settings, depending on the space availability and mission requirements. It is not uncommon for a court martial to be conducted in a large tent, or in a dingy building once used by Saddam Hussein's forces. Depending on the location, court martial participants, except for the defendant, may have their weapons close at hand.
In Cases of Joint Jurisdiction, Who Will Prosecute
Commonly, both civilian and military courts have jurisdiction over an offense. In this situation, military authorities must coordinate with the state and federal prosecutors to determine who will prosecute. Although rare, a service member may be prosecuted in state court and in military court for the same offense, with certain limitations. However, the U.S. Constitution's double jeopardy clause protects an accused from being prosecuted in military and federal court for the same offense.4
Additionally, an American service member may be tried by a foreign country for offenses committed in that country, unless the country has an agreement relinquishing jurisdiction to the United States. Such an agreement is call a status of forces agreement (SOFA). The United States has SOFA agreements with the majority of countries where the nation's military operates.5
1. Articles 2 and 17, U.C.M.J.
2. Article 3 U.C.M.J.
3. Article 5, U.C.M.J.
4. Schlueter, David A., Military Criminal Justice: Practice and Procedure, (6th ed. 2004), at 238-40.
5. Id. at 241-42.
Military Jurisdiction
Generally, court martial jurisdiction is only exercised over active service members.1 As long as a service member is on active duty, he or she is subject to the UCMJ. Jurisdiction normally ceases when the service member receives a valid discharge certificate. A Reservist is only subject to court martial jurisdiction when the offense was committed while on active duty or in an inactive duty training status. Meanwhile, Army National Guard of Air National Guard personnel are only subject to the federal military justice system while they are performing federal service.2
Worldwide Jurisdiction
The UCMJ has worldwide jurisdiction.3 The system was designed to travel anywhere the American military deploys. Currently, in Iraq and Afghanistan, courts martial proceedings are conducted in a variety of settings, depending on the space availability and mission requirements. It is not uncommon for a court martial to be conducted in a large tent, or in a dingy building once used by Saddam Hussein's forces. Depending on the location, court martial participants, except for the defendant, may have their weapons close at hand.
In Cases of Joint Jurisdiction, Who Will Prosecute
Commonly, both civilian and military courts have jurisdiction over an offense. In this situation, military authorities must coordinate with the state and federal prosecutors to determine who will prosecute. Although rare, a service member may be prosecuted in state court and in military court for the same offense, with certain limitations. However, the U.S. Constitution's double jeopardy clause protects an accused from being prosecuted in military and federal court for the same offense.4
Additionally, an American service member may be tried by a foreign country for offenses committed in that country, unless the country has an agreement relinquishing jurisdiction to the United States. Such an agreement is call a status of forces agreement (SOFA). The United States has SOFA agreements with the majority of countries where the nation's military operates.5
1. Articles 2 and 17, U.C.M.J.
2. Article 3 U.C.M.J.
3. Article 5, U.C.M.J.
4. Schlueter, David A., Military Criminal Justice: Practice and Procedure, (6th ed. 2004), at 238-40.
5. Id. at 241-42.
How To Get A Birth Certificate
by: John Wigington
Marriage Records Lorain County: That still won't help you if the person was marriageed somewhere other than where they were living or if they have a Marriage record in places that you don't even know that they lived. Marriage marriage records are documentation following marriage proceedings, which normally include the name of the husband and wife, date of the marriage and the date of the marriage. Other information that may also be included in marriage documents are the date of birth of both the spouses, the addresses of the spouses and the names and ages of their children. The reason for the marriage and the property they both own can also be seen in marriage documents.. This shouldn't be a problem since a public record request doesn't deal with any confidential government info.
Marriage Records List: It also gives you an understanding of any claims that could be made against money that you would jointly make in a business venture. Court Marriage Marriage records can be useful for a myriad of reasons. See http://www.govdivorcerecords.cn/Divorce.Records.Los.Angeles.California.factory~423KjIk7NU.html Did the police making marriage inform you about your rights as a citizen?
Were the tests done in accordance with the Standardized NHTSA guidelines?
Were the conditions proper?
Were your physical disability (if any), age, psychological conditions, weight given due attention while DWI tests were performed on you?
Hiring a competitive DWI Austin attorney: Don't try to be your own attorney if you are not qualified. Let a professional do his job. A DWI Attorney Specialist firm will ideally comprise Attorneys, Paralegals, investigator, outside forensic toxicologist, an outside evaluation group. The investigator is ideally a retired officer who has past experience of handling DWI cases at various levels..
Getting Marriage Records
In case of Instant search one can have access to the records instantly and quickly but every state jurisdiction may not offer instant access to its criminal records. Of course you should never choose to ignore it. More at http://www.divorcerecordsearchusa.cn/Divorce_Records_For_Oklahoma_info~PsNhGO5yo.html Crimes can be separated into felonies and misdemeanors.
Marriage Records Free
You can also run a search of thousands of real estate documents to learn the prices that buyers are paying in your neighborhood. DWI Austin Marriage cost: At least 6 months of worries and approximately $8500 expense. This includes attorney's fee, additional insurance, surcharges, Applying for temporary license etc. Hiring an attorney, appearing in court, not being able to drive, a bad police record, etc are things that you cannot convert in money and the stress and inconvenience it can cause immeasurable trauma.
First before I confuse you to the point of no return I am talking about an marriage by a police officer for an alleged crime. What I am not talking about is any other type of marriage whether it be a citizen's marriage for loitering or a cardiac marriage after suffering a massive heart attack that involved the Left Anterior Descending Artery. I just want to make some comments that may help a reader when they are marriageed in an instance where the law has either overstepped their bounds or where they are not understanding the situation that has transpired.. See http://www.marriagerecordsearch.cn/How+Find+Marriage+Counselor_factory!EgrO.html Crimes can be separated into felonies and misdemeanors.
Marriage Records Lorain County: That still won't help you if the person was marriageed somewhere other than where they were living or if they have a Marriage record in places that you don't even know that they lived. Marriage marriage records are documentation following marriage proceedings, which normally include the name of the husband and wife, date of the marriage and the date of the marriage. Other information that may also be included in marriage documents are the date of birth of both the spouses, the addresses of the spouses and the names and ages of their children. The reason for the marriage and the property they both own can also be seen in marriage documents.. This shouldn't be a problem since a public record request doesn't deal with any confidential government info.
Marriage Records List: It also gives you an understanding of any claims that could be made against money that you would jointly make in a business venture. Court Marriage Marriage records can be useful for a myriad of reasons. See http://www.govdivorcerecords.cn/Divorce.Records.Los.Angeles.California.factory~423KjIk7NU.html Did the police making marriage inform you about your rights as a citizen?
Were the tests done in accordance with the Standardized NHTSA guidelines?
Were the conditions proper?
Were your physical disability (if any), age, psychological conditions, weight given due attention while DWI tests were performed on you?
Hiring a competitive DWI Austin attorney: Don't try to be your own attorney if you are not qualified. Let a professional do his job. A DWI Attorney Specialist firm will ideally comprise Attorneys, Paralegals, investigator, outside forensic toxicologist, an outside evaluation group. The investigator is ideally a retired officer who has past experience of handling DWI cases at various levels..
Getting Marriage Records
In case of Instant search one can have access to the records instantly and quickly but every state jurisdiction may not offer instant access to its criminal records. Of course you should never choose to ignore it. More at http://www.divorcerecordsearchusa.cn/Divorce_Records_For_Oklahoma_info~PsNhGO5yo.html Crimes can be separated into felonies and misdemeanors.
Marriage Records Free
You can also run a search of thousands of real estate documents to learn the prices that buyers are paying in your neighborhood. DWI Austin Marriage cost: At least 6 months of worries and approximately $8500 expense. This includes attorney's fee, additional insurance, surcharges, Applying for temporary license etc. Hiring an attorney, appearing in court, not being able to drive, a bad police record, etc are things that you cannot convert in money and the stress and inconvenience it can cause immeasurable trauma.
First before I confuse you to the point of no return I am talking about an marriage by a police officer for an alleged crime. What I am not talking about is any other type of marriage whether it be a citizen's marriage for loitering or a cardiac marriage after suffering a massive heart attack that involved the Left Anterior Descending Artery. I just want to make some comments that may help a reader when they are marriageed in an instance where the law has either overstepped their bounds or where they are not understanding the situation that has transpired.. See http://www.marriagerecordsearch.cn/How+Find+Marriage+Counselor_factory!EgrO.html Crimes can be separated into felonies and misdemeanors.
When It's Time to Revisit The Support Order
by: David Siegel
How long has it been since your order for support was entered before the court? Have circumstances changed since that order for support was signed by the judge? Has there been a significant change in circumstances such as job loss or job enhancement? Has the need for support increased or declined since the order for support was entered?
If you are like most people, you are currently operating under a support order, which is currently out of touch. Whatever the statutory guideline amounted to at the time the order was entered; it's likely that the terms are not being complied with, under the terms of the order. For example, if the court ordered that 20% of the payor's net income go towards the support of the minor child, and the payor has had a significant increase in income since the time the order was entered, the child is clearly not receiving what the court nor the legislature intended the child to receive. Play to counteract this, is to bring a motion before the court for a modification and/or increase in child support. The payor will have to produce proof of income, which can include recent paycheck stubs, the most recent year's income tax filing, and any other source of income that he or she may have received in the last year. The payor may be willing to submit this information voluntarily or he or she may produce such information only after the filing of a subpoena to produce such documents. In any event, once the information is provided, the attorney for the payee can make an educated estimate of what the proper amount of support calculates to at the present date.
The payee may be surprised to see that the payor's income has increased significantly. The payor may be shocked that he or she must pay an additional amount per month then what was originally ordered by the court.
The bottom line is that the court and the legislature provided a means to determine the proper amount of support. The court also provided the means to go back to court and have the amount adjusted for present day circumstances. The payor also has the ability to petition the court for a proper reduction is circumstances have changed. The goal is to simply get the proper percentage corrected. The goal is not to provide an arena for protracted litigation on the issue of support.
How long has it been since your order for support was entered before the court? Have circumstances changed since that order for support was signed by the judge? Has there been a significant change in circumstances such as job loss or job enhancement? Has the need for support increased or declined since the order for support was entered?
If you are like most people, you are currently operating under a support order, which is currently out of touch. Whatever the statutory guideline amounted to at the time the order was entered; it's likely that the terms are not being complied with, under the terms of the order. For example, if the court ordered that 20% of the payor's net income go towards the support of the minor child, and the payor has had a significant increase in income since the time the order was entered, the child is clearly not receiving what the court nor the legislature intended the child to receive. Play to counteract this, is to bring a motion before the court for a modification and/or increase in child support. The payor will have to produce proof of income, which can include recent paycheck stubs, the most recent year's income tax filing, and any other source of income that he or she may have received in the last year. The payor may be willing to submit this information voluntarily or he or she may produce such information only after the filing of a subpoena to produce such documents. In any event, once the information is provided, the attorney for the payee can make an educated estimate of what the proper amount of support calculates to at the present date.
The payee may be surprised to see that the payor's income has increased significantly. The payor may be shocked that he or she must pay an additional amount per month then what was originally ordered by the court.
The bottom line is that the court and the legislature provided a means to determine the proper amount of support. The court also provided the means to go back to court and have the amount adjusted for present day circumstances. The payor also has the ability to petition the court for a proper reduction is circumstances have changed. The goal is to simply get the proper percentage corrected. The goal is not to provide an arena for protracted litigation on the issue of support.
Potential Negligence Of An Indiana Receiver
by: John D. Waller
Judge Theresa Springmann of the Northern District of Indiana issued an opinion on November 5, 2007 in the case FTC v. Think Achievement, 2007 U.S. Dist. LEXIS 82621 (N.D. Ind. 2007). Think Achievement was a negligence case brought against a court-appointed receiver relating to the alleged failure to preserve and protect the assets of the receivership estate. The opinion addresses some of the general rules in Indiana and the Seventh Circuit that apply to receivers. Although the underlying case dealt with Federal Trade Commission Act violations, the opinion relates to secured lenders because of their interest in holding receivers accountable for the protection of the receivership estate.
Why the suit? The receiver failed to procure insurance for a valuable estate asset, specifically a private residence in Carmel, Indiana. The residence was damaged by arson, and there was no insurance coverage for the fire-related losses. The question was whether the receiver should pay for the damage.
More background. The court-appointed receiver was an attorney with no prior experience as a receiver. Interestingly, he also acted as legal counsel for the receiver. (In essence, he provided legal counsel to himself.) The receiver understood he had a responsibility to protect the assets in the receivership estate, including keeping insurance on property. He ultimately dropped the ball, however, despite a seemingly reasonable excuse. (I won’t bore you with the relevant insurance law.)
Legal theories. The case was a negligence action asserting that the receiver breached his duty, owed to the receivership estate, “to exercise reasonable care to protect and preserve the assets of the receivership estate.” Id. at 8. Here are a couple important points cited in the opinion:
• Standard: In carrying out the duties of a receiver, the receiver “must exercise ordinary care and prudence, that is, the same care and diligence that an ordinary prudent person would exercise in handling his or her own estate, or under like circumstances.” Id.
• Help: “If a receiver is uncertain how to preserve property, he should petition the court for instructions.” Id.
In this particular case, the plaintiff argued that the scope of the duty included, specifically, a duty to obtain insurance for the protection of the estate assets and that the receiver breached that duty.
Outcome. The dispute did not center upon whether a duty existed. Indeed, the defendant did not deny that he had a duty of care to the receivership estate requiring him to obtain insurance on insurable assets. Id. Instead, the issue was whether and to what extent he appropriately carried out that duty, and the Court held there was evidence from which a jury could conclude either way. Although Judge Springmann pointed to facts unfavorable to the defendant, in the final analysis she held that the facts concerning whether the receiver breached (violated/failed to comply with) his duty did not “lend of themselves to only a single inference.” Id. at 12. In other words, whether the receiver conformed his conduct to the applicable standard of care was a triable issue of fact that must be reserved for the jury.
The upshot for receivers. There are a handful of points receivers can take away from the Think Achievement opinion. First, a court-appointed receiver may be exposed to liability for damages if it acts unreasonably with regard to its duty to protect the assets of the receivership estate. Second, if the receiver is faced with an issue and is unsure as to what to do, the receiver can and should petition the court for direction. Finally, as suggested by Judge Springmann, it may be prudent to seek the assistance of outside legal counsel.
Neither receivers, nor parties involved in a receivership, want to see unnecessary or avoidable expenses incurred. Hiring lawyers and filing motions with courts can become expensive and can, indirectly, dissipate the assets of the receivership estate. However, reasonable measures need to be undertaken to prevent damage to the property, such as the fire-related losses addressed in the Think Achievement case. Receivers are well advised to consider the retention of legal counsel when confronted with a tricky issue.
Lender applicability. From the perspective of a secured lender, the Think Achievement case is important because it is a reminder that, not only is a receiver’s purpose to protect loan collateral, but an unreasonable failure to do so may expose the receiver to a damages claim. Secured lenders might be able to seek recourse against receivers that negligently cause losses to the receivership estate.
Judge Theresa Springmann of the Northern District of Indiana issued an opinion on November 5, 2007 in the case FTC v. Think Achievement, 2007 U.S. Dist. LEXIS 82621 (N.D. Ind. 2007). Think Achievement was a negligence case brought against a court-appointed receiver relating to the alleged failure to preserve and protect the assets of the receivership estate. The opinion addresses some of the general rules in Indiana and the Seventh Circuit that apply to receivers. Although the underlying case dealt with Federal Trade Commission Act violations, the opinion relates to secured lenders because of their interest in holding receivers accountable for the protection of the receivership estate.
Why the suit? The receiver failed to procure insurance for a valuable estate asset, specifically a private residence in Carmel, Indiana. The residence was damaged by arson, and there was no insurance coverage for the fire-related losses. The question was whether the receiver should pay for the damage.
More background. The court-appointed receiver was an attorney with no prior experience as a receiver. Interestingly, he also acted as legal counsel for the receiver. (In essence, he provided legal counsel to himself.) The receiver understood he had a responsibility to protect the assets in the receivership estate, including keeping insurance on property. He ultimately dropped the ball, however, despite a seemingly reasonable excuse. (I won’t bore you with the relevant insurance law.)
Legal theories. The case was a negligence action asserting that the receiver breached his duty, owed to the receivership estate, “to exercise reasonable care to protect and preserve the assets of the receivership estate.” Id. at 8. Here are a couple important points cited in the opinion:
• Standard: In carrying out the duties of a receiver, the receiver “must exercise ordinary care and prudence, that is, the same care and diligence that an ordinary prudent person would exercise in handling his or her own estate, or under like circumstances.” Id.
• Help: “If a receiver is uncertain how to preserve property, he should petition the court for instructions.” Id.
In this particular case, the plaintiff argued that the scope of the duty included, specifically, a duty to obtain insurance for the protection of the estate assets and that the receiver breached that duty.
Outcome. The dispute did not center upon whether a duty existed. Indeed, the defendant did not deny that he had a duty of care to the receivership estate requiring him to obtain insurance on insurable assets. Id. Instead, the issue was whether and to what extent he appropriately carried out that duty, and the Court held there was evidence from which a jury could conclude either way. Although Judge Springmann pointed to facts unfavorable to the defendant, in the final analysis she held that the facts concerning whether the receiver breached (violated/failed to comply with) his duty did not “lend of themselves to only a single inference.” Id. at 12. In other words, whether the receiver conformed his conduct to the applicable standard of care was a triable issue of fact that must be reserved for the jury.
The upshot for receivers. There are a handful of points receivers can take away from the Think Achievement opinion. First, a court-appointed receiver may be exposed to liability for damages if it acts unreasonably with regard to its duty to protect the assets of the receivership estate. Second, if the receiver is faced with an issue and is unsure as to what to do, the receiver can and should petition the court for direction. Finally, as suggested by Judge Springmann, it may be prudent to seek the assistance of outside legal counsel.
Neither receivers, nor parties involved in a receivership, want to see unnecessary or avoidable expenses incurred. Hiring lawyers and filing motions with courts can become expensive and can, indirectly, dissipate the assets of the receivership estate. However, reasonable measures need to be undertaken to prevent damage to the property, such as the fire-related losses addressed in the Think Achievement case. Receivers are well advised to consider the retention of legal counsel when confronted with a tricky issue.
Lender applicability. From the perspective of a secured lender, the Think Achievement case is important because it is a reminder that, not only is a receiver’s purpose to protect loan collateral, but an unreasonable failure to do so may expose the receiver to a damages claim. Secured lenders might be able to seek recourse against receivers that negligently cause losses to the receivership estate.
What is Medical Malpractice?
by: Joe Devine
Medical malpractice is the very broad term given to a very wide variety of incidences where a doctor or someone with a medical license makes some sort of mistake that results in the injury or death of a patient. Such areas include birth injuries, missed or wrong diagnoses, or improper treatment. These are just three of many other areas of medical malpractice.
Birth injuries are basically any injury to a baby during birth that could have been prevented by action on the part of the doctor that was responsible for delivering the baby. For instance, if there are difficulties during the delivery and a doctor does not perform a c-section to get the baby oxygen, brain damage can occur. This is an example of birth injury that could have been prevented by quicker action or action in general by the doctor that was delivering the baby. Many birth injury situations involve unforeseeable complications that must be treated as best as possible when they occur. In other situations, a birth injury is preventable and may be the result of medical error, negligence, or malpractice. Birth injuries and birth traumas are often considered the same thing. Common causes of birth injuries include:
- Complications during pregnancy
- Improper dating
- Complications during childbirth
- Ob/Gyn errors such as mishandling of an instrument, improper delivery technique, Incorrect estimation of birth date, improper prenatal testing, failure to perform C-section in a timely manner, diagnostic errors, and failure to treat a condition
- Obstetrical mistakes such as failure to recognize fetal distress, failure to diagnose or treat infection, and failure to respond to complications in a timely manner
Missed or wrong diagnoses are pretty much exactly the way they sound. They involve a doctor misdiagnosing a disease or injury or a doctor not diagnosing something that is there. An example of misdiagnosing a disease would be diagnosing someone with Type 2 diabetes as having Type 1 diabetes. Quite frequently, these errors are quite dangerous as they frequently involve incorrect treatment. Doctors can also diagnosis something when a patient is in actuality healthy. The opposite of this situation is also true.
Improper treatment is also very similar to what it sounds like it is. It involves treating a disease or injury incorrectly. The incorrect treatment of a disease often results in the disease getting worse or a different disease developing. In order for incorrect treatment to be brought into play, a doctor must first diagnose the disease or injury correctly. Only then can improper treatment be brought up as an issue.
These are just three of the many areas of medical malpractice that personal injury lawyers see on a daily basis.
Medical malpractice is the very broad term given to a very wide variety of incidences where a doctor or someone with a medical license makes some sort of mistake that results in the injury or death of a patient. Such areas include birth injuries, missed or wrong diagnoses, or improper treatment. These are just three of many other areas of medical malpractice.
Birth injuries are basically any injury to a baby during birth that could have been prevented by action on the part of the doctor that was responsible for delivering the baby. For instance, if there are difficulties during the delivery and a doctor does not perform a c-section to get the baby oxygen, brain damage can occur. This is an example of birth injury that could have been prevented by quicker action or action in general by the doctor that was delivering the baby. Many birth injury situations involve unforeseeable complications that must be treated as best as possible when they occur. In other situations, a birth injury is preventable and may be the result of medical error, negligence, or malpractice. Birth injuries and birth traumas are often considered the same thing. Common causes of birth injuries include:
- Complications during pregnancy
- Improper dating
- Complications during childbirth
- Ob/Gyn errors such as mishandling of an instrument, improper delivery technique, Incorrect estimation of birth date, improper prenatal testing, failure to perform C-section in a timely manner, diagnostic errors, and failure to treat a condition
- Obstetrical mistakes such as failure to recognize fetal distress, failure to diagnose or treat infection, and failure to respond to complications in a timely manner
Missed or wrong diagnoses are pretty much exactly the way they sound. They involve a doctor misdiagnosing a disease or injury or a doctor not diagnosing something that is there. An example of misdiagnosing a disease would be diagnosing someone with Type 2 diabetes as having Type 1 diabetes. Quite frequently, these errors are quite dangerous as they frequently involve incorrect treatment. Doctors can also diagnosis something when a patient is in actuality healthy. The opposite of this situation is also true.
Improper treatment is also very similar to what it sounds like it is. It involves treating a disease or injury incorrectly. The incorrect treatment of a disease often results in the disease getting worse or a different disease developing. In order for incorrect treatment to be brought into play, a doctor must first diagnose the disease or injury correctly. Only then can improper treatment be brought up as an issue.
These are just three of the many areas of medical malpractice that personal injury lawyers see on a daily basis.
The Truth Behind Some Cheesy Lawyer TV Ads
by: Christopher Davis
Did you know that here are companies that offer prewritten and pre-shot TV commercials for personal injury attorneys? You've probably seen one of these canned ads. Sometimes a famous actor is used (such as William Shatner or Eric Estrada or someone who plays a lawyer on a popular TV show). Other times an attractive man or woman is shown speaking behind a desk, standing in front of a shelf full of law books. or holding a legal book, standing in a courtroom, or doing something else to make them look like a lawyer. Attorneys can buy these ads and then have their name, phone number and web address inserted into the ad.
The ads usually go something like--If you've been in an accident, get the money you deserve. Speak to an attorney for free. Call 1-800-XXXXXXX. The ads are running all over the US in large cities and small towns.
They often target specific types of cases such as car accidents, asbestos, medical malpractice, workmens compensation, trucking accidents, divorce, family law, etc.
What you need to know is that if you respond to one of these ads more often than not your call will be routed to a call center where operators answer the calls. Or to an out-of-state law office that then hands off your case to one of its in-state associates. In either scenario the attorney that you actually end up speaking with may or may not have the skills and experience that you need. Your call is being routed to the next attorney in line, so to speak.
The next in line is an attorney who has paid a fee to be a part of the network. Any attorney with enough money can pay to be on the list, including attorneys who have never tried a case in court. Many times the attorney who has paid the fee is not necessarily the best lawyer for your case.
I'm not saying that all attorneys who use TV advertising are inexperienced or that all attorney ads are routed in this way. Do your home work to figure out the difference and find the right attorney for your case. Search the web, read articles, visit websites, watch videos, talk to friends, and visit more than one attorney's office before you make your final decision. You should not rely on TV advertising alone when choosing a lawyer.
Did you know that here are companies that offer prewritten and pre-shot TV commercials for personal injury attorneys? You've probably seen one of these canned ads. Sometimes a famous actor is used (such as William Shatner or Eric Estrada or someone who plays a lawyer on a popular TV show). Other times an attractive man or woman is shown speaking behind a desk, standing in front of a shelf full of law books. or holding a legal book, standing in a courtroom, or doing something else to make them look like a lawyer. Attorneys can buy these ads and then have their name, phone number and web address inserted into the ad.
The ads usually go something like--If you've been in an accident, get the money you deserve. Speak to an attorney for free. Call 1-800-XXXXXXX. The ads are running all over the US in large cities and small towns.
They often target specific types of cases such as car accidents, asbestos, medical malpractice, workmens compensation, trucking accidents, divorce, family law, etc.
What you need to know is that if you respond to one of these ads more often than not your call will be routed to a call center where operators answer the calls. Or to an out-of-state law office that then hands off your case to one of its in-state associates. In either scenario the attorney that you actually end up speaking with may or may not have the skills and experience that you need. Your call is being routed to the next attorney in line, so to speak.
The next in line is an attorney who has paid a fee to be a part of the network. Any attorney with enough money can pay to be on the list, including attorneys who have never tried a case in court. Many times the attorney who has paid the fee is not necessarily the best lawyer for your case.
I'm not saying that all attorneys who use TV advertising are inexperienced or that all attorney ads are routed in this way. Do your home work to figure out the difference and find the right attorney for your case. Search the web, read articles, visit websites, watch videos, talk to friends, and visit more than one attorney's office before you make your final decision. You should not rely on TV advertising alone when choosing a lawyer.
Tips for Protecting Your Rights if you are Arreste
by: Patrick Adams
Learn your rights. The actions a person takes and the statements a person makes prior to and following an arrest can have a huge impact on your case!
1. Most importantly: Remain Silent! If you are being questioned chances are good you are a suspect and they are gathering evidence against you. Law enforcement will offer you encouragement to cooperate and tell you things will go easier on you if you talk to them, however, doing this may put your rights at risk and jeopardize your case! DO NOT ANSWER QUESTIONS WITHOUT AN ATTORNEY!
2. If they read or tell you your Miranda rights, they suspect you have committed a crime. Just as when an officer merely approaches and questions you, you have the right, if you are stopped, to refuse to answer any questions if the answer would tend to incriminate you. Also, if you are only being stopped, you can refuse to allow an officer to search your person. Further, anything you say can be used as evidence against you. Sometimes people think that what they are saying won\'t incriminate them, when in fact, what they say provides a link in a chain of information that could incriminate them.
3. You may be arrested by a police officer who personally saw you violate any state statute, city ordinance or federal law. The law may be a serious crime (a felony) or a lesser offense (a misdemeanor) or when there is a warrant for your arrest, whether or not you are aware of the warrant.
4. If you are arrested, do not argue with or resist the police. Arguing or resisting the police will not help you; it may increase your chances that the police will arrest you and bring criminal charges against you. It probably also will give them grounds to bring even more criminal charges against you, and it may make it harder for you to get out of jail on bail if you are charged. Once officers no longer have grounds to detain you, they should tell you that you are free to go.
5. If you are arrested you have rights that you should be aware of:
The right to remain silent and not answer any questions at all
The right to know that if you waive (give up) your right to remain silent and do answer questions, the police can use your answers against you in a court to get you convicted. Even if you begin to answer questions, you have the right to stop answering questions at any time and to speak with an attorney;
You have the right to speak privately with an attorney before you answer any questions or sign anything If you cannot afford an attorney and if the crime for which you have been arrested has jail time as a possible penalty, you have a right to have an attorney appointed for you to represent you at no cost to you before being questioned, and to have that attorney present with you during any questioning to which you may later agree to submit. Remember, you cannot be penalized for refusing to answer an officer\'s questions. If you try to cooperate by answering questions while you are being held in police custody, you may create difficulties for your lawyer in defending you later on. ALWAYS ASK TO SPEAK TO A LAWYER.
If you find yourself questioned or arrested it is important for you to be aware of your rights. Guilty or innocent, it is important for you to adhere to them in order for your attorney to provide you with the best defense possible.
For more information concerning your rights please visit our website at www.padamslawok.com. Adams Law office is located at 2 W. 6th St. Suite 500 Tulsa, Oklahoma 74119 or we can be reached at 918-587-8700. Our firm specializes in the defense of serious criminal offenses throughout Oklahoma.
Learn your rights. The actions a person takes and the statements a person makes prior to and following an arrest can have a huge impact on your case!
1. Most importantly: Remain Silent! If you are being questioned chances are good you are a suspect and they are gathering evidence against you. Law enforcement will offer you encouragement to cooperate and tell you things will go easier on you if you talk to them, however, doing this may put your rights at risk and jeopardize your case! DO NOT ANSWER QUESTIONS WITHOUT AN ATTORNEY!
2. If they read or tell you your Miranda rights, they suspect you have committed a crime. Just as when an officer merely approaches and questions you, you have the right, if you are stopped, to refuse to answer any questions if the answer would tend to incriminate you. Also, if you are only being stopped, you can refuse to allow an officer to search your person. Further, anything you say can be used as evidence against you. Sometimes people think that what they are saying won\'t incriminate them, when in fact, what they say provides a link in a chain of information that could incriminate them.
3. You may be arrested by a police officer who personally saw you violate any state statute, city ordinance or federal law. The law may be a serious crime (a felony) or a lesser offense (a misdemeanor) or when there is a warrant for your arrest, whether or not you are aware of the warrant.
4. If you are arrested, do not argue with or resist the police. Arguing or resisting the police will not help you; it may increase your chances that the police will arrest you and bring criminal charges against you. It probably also will give them grounds to bring even more criminal charges against you, and it may make it harder for you to get out of jail on bail if you are charged. Once officers no longer have grounds to detain you, they should tell you that you are free to go.
5. If you are arrested you have rights that you should be aware of:
The right to remain silent and not answer any questions at all
The right to know that if you waive (give up) your right to remain silent and do answer questions, the police can use your answers against you in a court to get you convicted. Even if you begin to answer questions, you have the right to stop answering questions at any time and to speak with an attorney;
You have the right to speak privately with an attorney before you answer any questions or sign anything If you cannot afford an attorney and if the crime for which you have been arrested has jail time as a possible penalty, you have a right to have an attorney appointed for you to represent you at no cost to you before being questioned, and to have that attorney present with you during any questioning to which you may later agree to submit. Remember, you cannot be penalized for refusing to answer an officer\'s questions. If you try to cooperate by answering questions while you are being held in police custody, you may create difficulties for your lawyer in defending you later on. ALWAYS ASK TO SPEAK TO A LAWYER.
If you find yourself questioned or arrested it is important for you to be aware of your rights. Guilty or innocent, it is important for you to adhere to them in order for your attorney to provide you with the best defense possible.
For more information concerning your rights please visit our website at www.padamslawok.com. Adams Law office is located at 2 W. 6th St. Suite 500 Tulsa, Oklahoma 74119 or we can be reached at 918-587-8700. Our firm specializes in the defense of serious criminal offenses throughout Oklahoma.
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