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Ireland Passes Arbitration Act of 2010: Incorporates UNCITRAL Model Law on International Commercial Arbitration

Thu, 11 Mar 2010 04:53:09 GMT

I’ve been lucky to have visited Ireland a few times in the past several years. From the unbridled majesty of the Cliffs of Moer, to the emerald hills of Kilarney, to the bustling streets of Dublin, everything about Ireland is pastoral and progressive at the same time.

Leave it to an international law geek like me to notice that even its judiciary reflects this unique mix. While holding strong to its English common law heritage, I found that Ireland is willing to abolish entire legislative codes that fail to keep up with modern jurisprudence.

Ireland Arbitration Act of 2010

In keeping with its progressive mandate, Ireland recently passed a new arbitration act that removes the distinction between domestic and international arbitration and creates a Swiss-style one-stop shop for post-award court proceedings.

The 2010 legislation includes the entire text of the United Nations Convention on International Trade Law Model Law on International Commercial Arbitration (Model Law) and will be instantly recognizable to lawyers across the globe. The Arbitration Act of 2010 will apply the Model Law to all arbitrations in Ireland and do away with the historical distinction between domestic and international arbitration.

UNCITRAL Model Law

The UNCITRAL Model Law has been adopted by more than 50 countries and covers all stages of the arbitral process. While initially designed for international commercial arbitration in mind, other countries such as Germany, New Zealand and Kenya have extended it to domestic arbitrations. Ireland originally adopted the Model Law in the Arbitration (International Commercial) Act 1998, but only for international commercial arbitrations.

Key Revisions to Irish Arbitration Law

1. No Distinction Between Domestic/International Arbitrations

There will be no difference between the legislative provisions relating to domestic arbitrations and international arbitrations. Irish practitioners will need to be familiar with the Model Law and this will be particularly useful when advising on contractual arbitration clauses, particularly those which have an international dimension.

2. Judicial Intervention Virtually Eliminated

The Arbitration Act of 2010 abolished the 'case stated' procedure. Arbitrators will no longer be able to refer to the courts a question of law arising in the course of the arbitration. The removal of the case stated procedure and significant reduction of the scope for judicial intervention will likely to lead to an increased focus on the choice of arbitrators and appointment mechanisms and requirements.

3. Limited Award Challenges

The only method of challenging an arbitral award will be under Article 34 of the Model Law. The grounds are extremely limited and the 2010 legislation will make it far more difficult to challenge an arbitral award than was the case under the previous legislation. The Model Law grounds of challenge have been interpreted narrowly in other jurisdictions, and the Irish Courts are likely to adopt a similar approach, in keeping with their approach to arbitration generally*.

4. Cost Allocation

The 2010 legislation allows the parties to agree on the allocation of costs either before or after the dispute has arisen (Section 21). The previous legislation provided that any such agreement on costs was only binding if it was reached after the dispute had arisen.

Effective Date June 2010

The 2010 legislation will apply to all arbitrations which commence after the legislation comes into operation. The 2010 legislation comes into operation in June 2010, 3 months from the enactment date.

Trend to Watch: Look for a Precipitous Increase in International Commercial Arbitrations Taking Place in Ireland in the Next Several Years

-Santiago

Time to Refinance Your Home…and Reduce Ex-Spouse’s Alimony

Thu, 11 Mar 2010 04:53:46 GMT

The UK Financial Times reports that bankers are using the current recession as a good opportunity to reduce their ex-wife’s alimony: City financiers who have seen bonuses slashed or lost jobs are flocking to the courts to seek a reduction...

What is an Examination Under Oath?

Thu, 11 Mar 2010 04:28:45 GMT

What is an Examination Under Oath?

The number one trigger that drives clients to my office is that dreaded lawyer from some fancy law firm, usually with lots of names at the top of the letterhead, that directs the insured to show up at a designated time and place for an “examination under oath.” The letter usually will also request the insured to bring numerous documents with him or her to the examination under oath. Those receiving the letter are usually frightened by the formality of it all, and then that fear turns into anger because the company they've been paying premiums to all these years is not treating them like a criminal. My next few posts will deal with common issues and questions surrounding examinations under oath. Hopefully it will help a few insureds understand what an examination under oath is, and why, in my opinion, a request for an examination under oath should be a red flag that the insurance company believes something is afoul.

An examination under oath, commonly referred to as an “EUO”, is a formal statement taken by the insured on issues related to the insurance claim or insurance policy at issue. EUOs are typically, although not always, conducted by an attorney representing the insurance company. A court reporter will be present, typing every question and answer verbatim. There is sometimes a videographer present as well. Examinations under oath usually last only a few hours, but I’ve been involved in a few that have taken multiple days.

The subject matter of the questions in an EUO varies depending on the issues at hand. For example, in a fire damage case, an insured should anticipate questions about the cause and origin of the fire, the financial condition of the insured leading up to the fire (motive), the insured’s whereabouts at the time of the fire (opportunity), the nature and extent of the loss, particular items claimed to have been damaged or destroyed, and the accuracy of answers provided in the insurance application. This is just a small sampling of the multitude of pitfalls for the unwary, and an insured would be wise to seek qualified legal counsel well before appearing for the examination under oath.

An insurance company’s authority to take an examination under oath comes from the insurance contract, which typically contains a provision, under the section “Duties of the Insured,” that the insured must answer questions under oath when requested by the insurer. Even without such a provision, there is almost always a “duty of cooperation” provision in the policy which would also require the insured’s participation in an examination under oath. If an insured refuses, it could result in the insurance company’s denial of the claim based on its assertion that the insured breached the insurance policy by refusing to cooperate. See Spears v. Tenn. Farmers Mut. Ins. Co., 300 S.W.3d 671 (Tenn. Ct. App. 2009).

Tennessee courts have consistently recognized an insurer’s right to take an examination under oath. See Shelter Ins. Co. v. Spence, 656 S.W.2d 36 (Tenn. Ct. App. 1983) (holding insurer was entitled under cooperation clause of policy to take sworn statement from each insured privately and out of each other’s presence); Widener v. Tenn. Farmers Mut. Ins. Co., 1995 WL 571868 (Tenn. Ct. App. 1995) (recognizing an insurer’s right to take an insured’s examination under oath); Jones v. Tenn. Farmers Mutl. Ins. Co., 2004 WL 170359, at *2 (Tenn. Ct. App. 2004).

Examinations under oath are certainly valid tools in an insurance company’s vast arsenal of weaponry to be used to deny claims, but there are several nuances which most insureds and many lawyers who represent them are unaware. Over the next few posts, I’ll try to identify those to better equip those unfortunate souls who receive the dreaded letter requesting an EUO.

Patty Salkin

psalk@albanylaw.edu (Patricia E. Salkin) — Thu, 11 Mar 2010 04:40:32 GMT

Special thanks to my colleague Professor Mary Lynch at Albany Law School who posted the following on the Best Practices for Legal Education Blog: A new article just posted to SSRN examines Best Practices in the field of land use law. The article, “Practically Grounded: Convergence of Land Use Pedagogy and Best Practices” is forthcoming in [...]

Special thanks to my colleague Professor Mary Lynch at Albany Law School who posted the following on the Best Practices for Legal Education Blog:

A new article just posted to SSRN examines Best Practices in the field of land use law. The article, “Practically Grounded: Convergence of Land Use Pedagogy and Best Practices” is forthcoming in the Journal of Legal Education. (One can downloand at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1540713).

The authors (my colleague Dean Patricia Salkin from Albany Law School and Professor John Nolon from Pace Law School) are among the most prolific land use law scholars in the nation. I am delighted that their current scholarship venture will add to the growing body of literature on Best Practices as it offers unique perspectives and ideas that we can all learn from. Even though I have no experience in, nor have ever taught, land use law, I found the article contained lots of little gems and good ideas for those of us who teach in other subject areas or who are collaborating with colleagues on Best Practices initiatives.

Salkin and Nolon’s article begins with an examination of the changing dynamics in the field of land use and sustainable community development law, explaining how this provides a unique opportunity to rethink the way in which faculty prepare law students to practice law in this area. The authors explain how this paradigm shift converges with the growing momentum of the Best Practices movement, and observes that a “perfect storm” is present and a unique opportunity exists through the application of many “Best Practices” concepts for land use law faculty to lead the academy in reinventing curriculum and teaching strategies to better prepare students for the practice of law.

The article also reviews the history of the Best Practices movement, and makes the case as to why land use should be the “poster child” for best practices. This is followed by a discussion of an empirical survey conducted by the authors in 2008 of land use law professors that examined, among other things, the opportunities to apply Best Practices to the subject of land use law. The article offers innovative examples of teaching methods that can be effectively utilized within the confines of the traditional classroom, using the land use law course as a model, as well as an example of how the land use law course can be used across the curriculum as a Best Practices capstone experience.

Again using the content of the land use course, the article concludes with the observation that the traditional approach to teaching can be converted into exciting opportunities that engage student learners, stretch the limits of student creativity, instill a sense of professionalism, and, consistent with the findings and recommendations of the Best Practices Report, prepare students to be more effective attorneys.

Filed under: Uncategorized Tagged: best practices in legal education, teaching land use law, teaching planning law

Patty Salkin

psalk@albanylaw.edu (Patricia E. Salkin) — Thu, 11 Mar 2010 05:09:29 GMT

A zoning administrator’s ruling that a voluntary conveyance of land within the owner’s parcel to the Commonwealth for a road, physically separating the remaining portions of that parcel, did not effect a legal separation of such parcel into two lots, was upheld. Although the property owners did convey the parcel, the Court held that legally separating the noncontiguous portions of the property is not enough to demonstrate a subdivision. The Virginia Supreme Court said that legal separation of property required that the owner, at minimum, duly record a change in the legal description of the retained property either by metes and bounds or by plat. That did not occur, and the owners did not memorialize any intended or desired legal separation of the noncontiguous portion, nor did they record anything to suggest that the property was no longer one unit. Further, the Court noted that the tax records reflected that the property continued to be taxed as one parcel.

W&W Partnership v. Prince William County Board of Zoning Appeals, 2010 WL 653447 (Va. 02/25/2010)

The opinion can be accessed at: http://www.courts.state.va.us/opinions/opnscvwp/1090328.pdf

Filed under: Current Caselaw, Subdivision Regulation Tagged: Virginia

LA Textile Show: Your Opportunity to Source More Than Fabric!

Thu, 11 Mar 2010 03:14:28 GMT

If you are in Los Angeles and plan on sourcing fabrics or trims next week at the Los Angeles International Textile Show (also know as L.A. Textile 2010) at the California Market Center ("CMC"), I will there too!

I am honored to be speaking at the following two seminars:

On March 16, 2010 from 3:30–4:30 p.m. I will present “Legal Strategies for a Profitable Fashion Business” in CMC, suite C786; and
On March 17, 2010 from 1–2:15 p.m., I will be part of the panel “How to Plan, Merchandise & Sell Your Products in a Slow Economy,” along with Dana Fried, Ken Wengrod, Sheila Hill and Bobby Hines, and moderated by Frances Harder of Fashion Business Incorporated in CMC 13th-floor penthouse, suite 19

Please come by and say hello. This is a another good in-person networking opportunity as well as a chance for all you aspiring fashion lawyers out there to learn more about practicing fashion law.

What is Osteomyelitis?

Wed, 10 Mar 2010 22:54:50 GMT

Osteomyelitis means infection of the bone or bone marrow; inflammation of the bone due to infection. Osteomyelitis sometimes occurs as a complication of injury or surgery.

Merck advises Osteomyelitis occurs most commonly in young children and in older people, but all age groups are at risk. Osteomyelitis is also more likely to occur in people with serious medical conditions.

There are three types of osteomyelitis:

Acute osteomyelitis - the infection develops within two weeks of an injury, initial infection, or the start of an underlying disease.
Sub-acute osteomyelitis - the infection develops within one or two months of an injury, initial infection, or the start of an underlying disease.
Chronic osteomyelitis - the bone infection starts at least two months after an injury, initial infection, or the start of an underlying disease.

Infections can reach a bone by traveling through your bloodstream or spreading from nearby tissue. Infections can also begin in the bone itself if trauma exposes your bone to germs. Bone infections commonly affect the long bones of your body, such as your leg bones and upper arm bone, as well as your spine and pelvis.

The symptoms are pain. Doctors treat chronic osteomyelitis with surgery and antibiotics. In acute osteomyelitis in children or vertebral osteomyelitis, surgery isn't always necessary. Once considered incurable, osteomyelitis can be successfully treated today. Still, osteomyelitis is a serious condition, requiring aggressive treatment to prevent spread of your infection and to save the affected bone.

Day 3 of the Trial, Through the Eyes of the SL Tribune

Thu, 11 Mar 2010 04:59:51 GMT

Here's what the Salt Lake Tribune reports happened today at the SCO v. Novell trial, all of which it records as if it were all so. Let's see if it is, by comparing what is reported about the testimony with what we already know. Part of what Groklaw does is insist on checking facts. So, let's do that.

Black pepper recall grows

Thu, 11 Mar 2010 03:51:05 GMT

The FDA announced yesterday that yet another company is recalling black pepper products as a result of Salmonella contamination. This recall is related to the Mincing Overseas Spice Company recall that occurred on the heels of a major salmonella outbreak linked to Salami products manufactured and sold by Daniele Inc.

The FDA announcement reads as follows: As a result of a recall of Black Pepper by Mincing Overseas Spice Company and distributed by Dutch Valley Food Distributors due to the possibility of contamination with Salmonella, an organism which can cause serious and sometimes fatal infections in young children, frail or elderly people, and others with weakened immune systems, a product recall is being issued. Healthy persons infected with Salmonella often experience fever, diarrhea (which may be bloody), nausea, vomiting, and abdominal pain. In rare circumstances, infection with Salmonella can result in the organism getting into the bloodstream and producing more severe illnesses such as arterial infections (i.e. infected aneurysms), endocarditis and arthritis.

Dutch Valley Food Distributors, Inc. has issued a voluntary recall for the following products with a Bulk Foods Inc. label:

5 Pound boxes of Seasoning Salt, item 808530, with a Mfg. date of 1/4/10 and 2/2/2010
5 Pound boxes of Perfect Pepper Seasoning, item 808399, with a Mfg. date of 1/4/2010
5 Pound boxes of Perfect Pepper Dip Mix, item 278115, with a Mfg. date of 12/7/2009
5 Pound boxes of Vegetable Dip Mix, item 278112, with a Mfg. date of 1/4/2010 and 2/2/2010
5 Pound boxes of Southwest Dip Mix, item 278109, with a Mfg. date of 2/2/2010

50 Pound boxes of Medium Black Pepper, item 808464 with a lot number of 3309 (B, F, G, K, P and T) and 3258 (B, D, G, L, P, Q, R, T and X)
20 Pound boxes of Coarse Black Pepper, item 808465 with a lot number of 3309 (B, F, G, K, P and T) and 3258 (B, D, G, L, P, Q, R, T and X)
25 Pound boxes of Fine Black Pepper, item 808466 with a lot number of 3309 (B, F, G, K, P and T) and 3258 (B, D, G, L, P, Q, R, T and X)
50 Pound boxes of Fine Black Pepper, item 808467 with a lot number of 3309 (B, F, G, K, P and T) and 3258 (B, D, G, L, P, Q, R, T and X)
25 Pound boxes of Whole Black Peppercorns, item 808468 with a lot number of 3309 (B, F, G, K, P and T) and 3358 (B, D, G, L, P, Q, R, T and X)
20 Pound boxes of Medium Black Pepper, item 808469 with a lot number of 3309 (B, F, G, K, P and T) and 3358 (B, D, G, L, P, Q, R, T and X)
5 Pound pails of Whole Black Peppercorns, item 808470 with a lot number of 3309 (B, F, G, K, P and T) and 3358 (B, D, G, L, P, Q, R, T and X)

All items packaged and sold within the parameters mentioned are subject to this recall, including items sold on our website, www.dutchvalleyfoods.com1. The items were distributed nationwide. Retailers are advised to remove all these products from store shelves based on lot number or manufacture dates. Consumers who have purchased these products are asked to destroy them. Consumers with questions regarding the products listed may call Dutch Valley Foods at 1-800-733-4191 and speak with customer service. For more information on FDA’s ongoing investigation, visit the FDA’s website at www.fda.gov2.

Lockridge v. University of Southern Maine, No. 09-1895 (1st Cir. Mar. 10, 2010); Corbitt v. Home Depot U.S.A., Inc., No. 08-12199 (11th Cir. Mar. 10, 2010)

Thu, 11 Mar 2010 03:26:26 GMT

The First Circuit holds that denial of an employee's request for office space may be a materially adverse action for purposes of a Title VII retaliation claim, though on the individual facts affirms summary judgment for the employer. The Eleventh Circuit grants en banc review in a sex harassment case, mere months after giving full-bench review to another harassment case.

ROC Boards Must be Consistent When Enforcing Rules

Thu, 11 Mar 2010 02:10:37 GMT

A column in a recent edition of the Sarasota Herald Tribune highlighted the problems that all too often arise in communities when boards and managers fail to enforce a community rule on a consistent basis. When a particular rule is enforced only against some of the residents in the community (with no legitimate reason for the rule's "selective enforcement"), it becomes difficult, if not impossible for that particular rule to withstand a legal challenge from a resident that feels he or she is being singled out for this "selective enforcement".

I discussed this problem in my "mini board orientation" at our ROC seminars last week at Japanese Gardens in Venice and this week at Harbor Oaks in Fruitland Park. Thanks to both of these communities for being gracious hosts and to all of the attendees. I'll be presenting the same "mini board orientation" March 23 at Golf Lakes in Bradenton and on April 1 at Enchanting Shores in Naples. Please contact either Karen Midlam (kmidlam@lutzbobo.com) or Kathy Sawdo (ksawdo@lutzbobo.com) if you haven't already rsvp'd and would like to attend one of those seminars. These seminars begin at 10 a.m. and end by 12:30. There's no charge to attend and refreshments are served.

I also wanted to note that last week a 96 year old man in Venice was attacked by a rabid otter while taking his early morning walk. Fortunately, the man was rescued by several onlookers but suffered some fairly serious cuts and bites and both he and one of his rescuers will require a series of rabies shots. Every community seems to have at least one resident that takes great pleasure in feeding the raccoons, birds, alligators, etc. that share Florida with us. These residents need to be gently but firmly reminded that the "wild" in "wildlife" means just that, and that if the community has rules against feeding these wild animals those rules will be enforced--in a consistent manner against all residents in the community.

Tribes face hurdles with sex offender registration

Thu, 11 Mar 2010 03:13:38 GMT

3-10-2010 New Mexico:SANTA ANA PUEBLO, N.M. (AP) - Only two groups of Native American tribes and one state have implemented sex offender registration and notification systems that comply with a federal law passed nearly three years ago to coordinate and expand registration nationwide.An official with the U.S. Justice Department's division that coordinates sex offender registration and tracking

Fingerprint matches increase, but not arrests as Crist claims

Thu, 11 Mar 2010 03:28:16 GMT

3-10-2010 Florida:The statement"Florida's new fingerprint identification system is improving our rate of solving cold cases by 300 percent."Gov. Charlie Crist, March 2, his State of the State address.The rulingCrist is talking about the Biometric Identification System, or BIS for short. According to the Florida Department of Law Enforcement, BIS is more precise and has more capacity than

Are You Asking Too Many Questions During Cross-Examination?

Thu, 11 Mar 2010 03:25:20 GMT

As Shakespeare would say, “Don’t gild the lily.” When a witness gives you a favorable answer (regardless of whether its during direct examination or cross-examination), be wary of trying to improve upon it. Too many times, attorneys have tried to lock the witness down on a point that they’ve already won, only to have the witness [...]

As Shakespeare would say, “Don’t gild the lily.”

When a witness gives you a favorable answer (regardless of whether its during direct examination or cross-examination), be wary of trying to improve upon it. Too many times, attorneys have tried to lock the witness down on a point that they’ve already won, only to have the witness improve upon the answer and cram it down the attorney’s throat.

For example, let’s say you represent a man accused of Trafficking in Heroin. The government is alleging that he was part of a conspiracy to sell 500 grams of heroin. Your client was a small part of the conspiracy, and only dealt with one person, a confidential informant. During direct examination, the prosecutor asks the informant, “Was Desmond Llewellyn Witherspoon present during the negotiations?” To everyone’s surprise, the witness says, “I don’t think so.” The prosecutor (an overworked young man with 6 months of experience) doesn’t know what else to do, and so he sits down.

The wise defense attorney would say, “No questions” and shut up. But some cross-examiners would attempt to lock the witness’s favorable answer down. The result is that they impeach valuable information:

Q: You told the prosecutor that you didn’t think Desmond Llewellyn Witherspoon was present at the negotiations.

A: That’s right, I don’t think he was.

Q: So Desmond Llewellyn Witherspoon didn’t have anything to do with the negotiations?

A: I don’t think so.

Q: And Desmond Llewellyn Witherspoon didn’t set up a deal to sell 500 grams of heroin, did he?

A: I don’t think so.

Q: You keep saying, “I don’t think so,” but could you clarify for us. [pointing towards his client] He didn’t have anything to do with the heroin negotiations, did he?

A: Oh, him? Pookie? Yeah, Pookie was the guy that set up the entire deal. He called me, negotiated the prices, raved about the quality of his product, told me he could get an unlimited supply of heroin because he’d killed some guys down in Colombia and had an entire border patrol on his payroll or something like that, so he had the entire region under a stranglehold and could export as much heroin as he wanted. Yeah, Pookie was the kingpin of the entire organization. But that name you keep mentioning, “Desmond Llewellyn Witherspoon?” I don’t think I’ve ever even heard the name before. Your guy never told me his real name, everybody just called him “Pookie.”

Most often, attorneys encounter this problem during cross-examination. They’ll cross a witness and unearth a diamond in their testimony. But then, they do the unthinkable, and try to polish it while the witness is still on the stand. The results, invariably, are disastrous.

Q: Did you hear anything?
A: Nope, not that I remember.

Q: Are you sure?
A: Yeah, pretty sure.

Q: [rubbing his hands in glee] You didn’t hear anything at all?
A: Well, nothing except for [bad fact that seemed innocuous to the witness]

When you uncover favorable testimony, consider switching to another line of questioning, or perhaps even quitting entirely and sitting down. It’s okay to quit while you’re ahead. To inquire further may ruin the presentation, or even elicit damaging information. If you keep going, you give the witness an opportunity to explain his answer. When you get a good answer, don’t push the witness on the issue. Just take your good answer and go home.

Have Pen, Will Travel

Thu, 11 Mar 2010 03:02:14 GMT

We often hear about the most dramatic court cases, or those involving high profile persons or extremely large amounts of money. But a colleague recently blogged about how transactional work from a conventional attorney can be high drama, too. It’s always refreshing to receive this sort of recognition (or redemption).

Those of you who are old enough may remember the popular television show, “Have Gun Will Travel.” The main character, known only as Paladin, was paid a hefty fee to settle problems without violence when possible, but excelled when forced to fight. "Trekkies" may be aware that most (if not all) episodes were written by Gene Roddenberry. the creator of “Star Trek.”

I recall one particular episode of the show about a woman who hired Paladin to represent her. She married a miner after spending only one evening with him. He left all his worldly possessions to her in a will in his own handwriting, and died. He had no other heirs. A partner challenged the will. Paladin, although not a lawyer, got the judge to agree to a jury of only three, who happened to be elderly miners themselves. He presented to them the story of how his client gave a lonely old man one wonderful evening of companionship and respect (no snickering here – this was the 1950’s). The jury agreed the will was valid.

The “attorney as hired gun” can be a pejorative, negative metaphor. It’s important to bear in mind that Paladin, who often exhibited his education and breadth of knowledge, only resorted to combat as a last resort. In that sense I like to think we are modern-day Paladins. We may not carry derringers under our belts, but we do consider ourselves well-read, highly prepared, and ready to take on the bad guys, armed with knowledge and experience – and resorting to ritualized combat (litigation) only as a last resort.

The paladins, sometimes known as the Twelve Peers, were the foremost warriors of Charlemagne's court. photo courtesy Wikipedia

Iowa House Passes MMA Bill 89-6

Thu, 11 Mar 2010 02:31:15 GMT

On March 9, 2010, the Iowa House passed Senate File 2286 (regulating amateur mixed martial arts) with one key amendment. Amendment H-8277 added language that puts under the auspices of the regulations any MMA event where "merchandise or refreshments are available for purchase."

The original language of SF 2286 governed any MMA event "open to the public." This was amended by the Senate to be limited to events where admission is charged or donations are requested. This was an important change because, in the absence of such language, exhibition matches at local gyms could have, unintentionally, fallen within the scope of the statute.

The new amendment by the House closes a loophole that would have allowed promoters to stage unregulated, public amateur fights by hosting them at venues where the money would be made by selling food and beer rather than tickets.

Because the House amended the bill, it now returns to the Senate. I anticipate quick passage, which would put the bill on the Governor's desk to sign. One possible snag is that some people are lobbying for an additional amendment that would remove the requirement for promoters to provide health/life insurance for fighters. If the Senate removed that requirement, the bill would then have to come back to the House as both chambers of the legislature must pass identical versions for it to ultimately become law.

Employee Handbooks Need to Change

Fri, 12 Mar 2010 15:36:20 GMT

Mike Maslanka, generally a defense lawyer, offers a good point about employee handbooks. All large employers have them. They provide concise, easy-to-read rules. But, employee handbooks generally do not provide a purpose for the rule. They do not explain why a particular rule is necessary, or even better, why the rule provides a benefit to the employee. For example, every handbook explains that the employee is at-will and and can quit anytime. That means, the employer can terminate the employee at any time. Mike suggests employers explain how that benefits both parties. One could, for example, insert a sentence explaining that this flexibility allows either party to seize available opportunities. A handbook could also explain the rules regarding hostile work environment ensure that the best employees are allowed to be productive.

In the US Army, we called this process "task plus purpose." Every mission should provide the purpose of a particular mission to a soldier. If you explain the purpose of a particular task or mission, you provide that soldier the flexibility to react to changing circumstances. For example, do not just tell a captain his men must seize a particular objective. Tell him his troops must secure an objective in support of another attack. That way, if the objective is secured before the captain gets there, he will know that he should react by supporting the attack in some other way. This sort of flexibility allows nimble reaction to a fluid situation. He will not have to wait until he can call the general on the radio to obtain new guidance.

But, this flexibility also incorporates the Captain into the overall strategy. He is not just a cog, but an integral part of the plan. If you bring the Captain and his troops into the overall battle plane, they will treat it as their own plan. Any employee needs to feel part of the overall strategy. They need to buy into the overall plan, not just their small part of it.

But, the disconnect in this scenario is that some employers do not want the employees to feel they have a voice in company strategy. Some employers believe that in giving employees a voice in how to sell product or how best to fabricate machinery, they may seek a voice in other areas, as well. If so, that view is short-sighted.

Americans are generally independent. We will follow orders or direction but we want to know why. Our military forces for 200 years have always needed some degree of explanation before following direction. The new generation, the so-called "millenial" generation, seeks this understanding even more so. An employer who ignores these facets of our national character does so to their detriment.

Will Short Sales Be the Trick to Stop the Foreclosure Flood?

Thu, 11 Mar 2010 02:08:10 GMT

Realizing that the "fixes" put in place by the federal Home Affordable Modification Program ("HAMP") have been an abysmal failure, the Obama Administration and the Treasury Department have reached for a new arrow in their quiver. Beginning April 5, 2010 the new Home Affordable Foreclosure Alternative program ("HAFA") will attempt to assist hundreds of thousands of the delinquent homeowners who could not be rescued under the HAMP program by allowing them to shed their homes through the short sale process.

Traditionally, a short sale is when the proceeds from the sale of a home are insufficient to fully pay off all outstanding debts and encumbrances recorded against the property. In these situations, the selling homeowners can either bring funds to the closing to make up the difference, or obtain approval from their mortgage lenders to accept a reduced amount to satisfy their outstanding loans.

Under HAFA, the lender must offer a short sale in writing to the homeowner within 30 days after the homeowner either is found ineligible for mortgage modification under HAMP or has been ruled unable to sustain payments under a trial plan. Under the new plan, a lender will use real estate agents to determine the value of the encumbered home and this figure will be the lender’s minimum to accept for a short sale. This figure will not be shared with the homeowner, but if an offer comes in that is equal to or greater than this amount, the lender must accept it and proceed with the short sale.

Under this new program the primary lender will receive $1000 if the short sale is completed. A lender holding a secondary lien could get up to $3000 of the short sale proceeds, or can attempt a short sale outside the program if it does not agree to share. In addition, the selling homeowner will get $1500 in "relocation assistance".

While HAFA will attempt to make short sales easier and a more likely alternative to foreclosure, short sales require significant time and patience by all parties involved. Luckily, with the seemingly continuous delay of the foreclosure process by the New Jersey courts, one thing that delinquent homeowners seem to have is time.

At the beginning of foreclosure crisis lenders shunned short sales and would regularly refuse to participate in the process. However with the failure of other federal programs to effectively turn the tide of the foreclosure flood, it may now be time for short sales to see their moment in the sun. For condominium and homeowner associations ("Associations"), HAFA may mean fewer empty foreclosed homes waiting to be sold by uninterested and unmotivated lenders. Another direct benefit of the HAFA program for Associations is that the common assessment liens recorded against the homeowners’ units must be paid in full for the short sale to be completed. This will provide Associations significant leverage to ensure that unpaid common assessments are recovered.

Watching Certain People: Does this have a familiar tune?

Thu, 11 Mar 2010 03:01:54 GMT

3-10-2010 New York:From 2004 through 2009, in a policy that has gotten completely out of control, New York City police officers stopped people on the street and checked them out nearly three million times, frisking and otherwise humiliating many of them.Upward of 90 percent of the people stopped are completely innocent of any wrongdoing. And yet the New York Police Department is compounding this

Apple to Germans: Und NO NIPPLES!

Thu, 11 Mar 2010 00:53:31 GMT

Apple is requiring app publishers to expunge all nudity from all apps. This particular bit of US-centric prurience isn't going over well in Germany, where Bild has a popular naked-woman tabloid feature that it turned into an iPhone app. According to the Guardian (UK) the Association of German Magazine Publishers has asked the International Federation of the Periodical Press (FIPP) to make a complaint about Apple and its censorious ways. I have a complaint or two I'd like to make, too.

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Watching Certain People: Does this have a familiar tune?

Apple to Germans: Und NO NIPPLES!