Rogers & Tartaro On Main Street

Our New Connecticut Office Address

Angelo Tartaro — Tue, 27 Mar 2012 12:20:00 -0500

As of March 29, 2012, our Connecticut office will have a new address:

Rogers & Tartaro, LLP

158 Danbury Road

Suite 8

Ridgefield, Connecticut 06877

Our telephone number, fax number and e-mail addresses remain unchanged.

This blog will continue to comment on topics of interest to the small business community. Thus, metaphorically this blog continues to be "On Main Street."

Firm Update: Successes in Employment; Trusts & Estates

Angelo Tartaro — Tue, 08 Nov 2011 16:19:54 -0500

We're back. After an unavoidable hiatus, we're posting again. Although we regret our absence from the blogosphere, we were not idle. We begin by updating clients and friends with summaries of some our recent accomplishments:

Employment Law - Reinstatement of Government Employee

We helped a hard-working federal government employee win reinstatement to her job and achieve vindication after a premature suspension. Our client was accused -- but not tried, let alone, convicted -- of a serious crime. We worked in coordination with criminal defense counsel to prevent the loss of pay, job status and morale while charges were appropriately addressed.

We are pleased to report that both the criminal charges and the employment issues were resolved satisfactorily for our client who is back at work without loss of pay or status.

Trusts and Estaes - IRS Audit

We are in the final "winding down" stages of representing the Executors of a 20 million dollar estate through an IRS audit of the estate tax return. Working with the Estate's accountant and a co-counsel, we established a professional working relationship with the auditor and were able to fully document and explain all aspects of the tax return. This matter presented a significant issue when we discovered a consultant had over-valued an asset and the Executors had to file an amended return to claim a refund. The IRS agreed with us on that issue and we were able to resolve other issues raised by the audit to the satisfaction of our clients, the Executors -- and the IRS.

Trusts and Estates - Undoing a 20-year Error

We drew on our expertise in both New York and Connecticut law to help a family undo a 20-year error in two deeds and quiet title to a Connecticut real estate property. The property had been in the family even longer, more like 40 years. But, over 20 years ago, when a parent tried to pass the property to the next generation, a New York lawyer drafted two deeds, each with a provision that would have been legally sufficient in New York but not in Connecticut -- we'll spare you the technicalities but attorneys and others who are curious can send us an inquiry through the "Comments" feature of this blog or drop us an e-mail.

As a result, we had to go back 15-20 years to research the history of two closed estates. Clearing title involved researching the status of estate tax and succession tax laws over the last 15-20 years (which have done nothing but change over that time), determining the value 20 years ago of a property that had not sold for about 40 years and commencing an appropriate proceeding in Probate Court.

Happily, with the assistance, patience and cooperation of the clerks of a New York Surrogate's Court and of a Connecticut Probate Court, title was cleared, title insurance was issued and the family was able to sell and transfer the property as planned.

Attorney (and Client) Expectations

Beverley Rogers — Wed, 27 Apr 2011 19:41:12 -0500

As a private firm with a civil litigation practice in a mid-sized town, we receive inquiries from potential clients looking for information and wondering if they “have a case.” We are often surprised by the expectations of many of these individuals, including the assumption that a retainer or initial consulting fee will not be charged.

An attorney’s inventory consists of his/her time, expertise and judgment. An evaluation of a case draws on all three, and fair compensation is appropriate. Consulting and retaining an attorney requires a substantial emotional and financial commitment.

Since a litigation practice inherently involves helping clients to resolve disputes or controversies, the stress level is always high, even before the first introduction. We found that the following suggestions can help both potential clients and attorneys (no matter what the size of the firm) navigate through the beginning of the process.

Communication is key. An important element to a successful outcome is the attorney - client relationship and the sharing of knowledge. Be sure you are comfortable with one another. Both parties should be reasonably available.

Be realistic. Both client and attorney need to be sensible about whether a case is viable. Many potential litigants mistakenly believe that hiring a lawyer will easily resolve their problems. Clients should also understand the potential extent of time (and inherent costs) for litigation.

Be wary. Litigation is inherently risky. Any attorney who guarantees a particular result should be avoided.

Agreements should be formal. The attorney’s terms of representations should be in writing and explained to a client’s understanding and satisfaction. Be honest and make sure each party knows what is expected of the other.

Fee arrangements should be written out in detail and signed by both parties.

Clients have work to do, too. Clients are responsible for gathering relevant materials in a timely manner.

Experience counts. Make sure that the firm or attorney you are considering is experienced in the area in which you are dealing.

Be open to a fair settlement. The goal should be a satisfactory, reasonably economical resolution of the dispute. “Go for broke” -- and you just might get there.

Support Your Local Food Pantry

Beverley Rogers — Tue, 19 Apr 2011 10:44:59 -0500

Signs of the recession are apparent in downtown Ridgefield. There are vacant storefronts downtown when, a year ago, there were none. The vacant storefronts evidence the fact that, indeed, Ridgefield is not immune to feeling the pinch of the economic downturn in our state and country.

As a community, however, we don’t see the evidence that many of our neighbors struggle to feed their families. The Ridgefield Food Pantry, located in Town Hall, reports that as the effects of the Great Recession linger, more and more Ridgefielders turn to the food pantry to supplement the food they can buy to place on their family table. Many Ridgefielders need the Food Pantry’s assistance now, whereas a few years ago, they were among the many people donating food to the Food Pantry.

Please consider making a donation of food or a supermarket gift card to the Ridgefield Food Pantry. A donation of $5.00 is not diminished by administrative fees; and, a jar of peanut butter will help fill a child’s hungry tummy. Even the smallest donation to the Food Pantry makes a huge difference in whether our neighbors go to bed hungry or are able to feed their families during this very difficult time.

Anti-social media: Troublesome Tweets

Angelo Tartaro — Tue, 22 Mar 2011 10:26:09 -0500

This blog has featured several entries about controversial Facebook posts and the troubles they can cause employees, but it seems that saying something in 140 characters (or less) may be even more damaging. Careless Twittering has been in the news and cost several people their jobs or business ties as of late. For example:

• Insurance giant AFLAC fired comedian Gilbert Gottfried for tweeting about the devastation in Japan (Gottfried is the voice of the trademark Aflacduck). Gottfried, known for his offhand and often vulgar comedy, posted some insensitive tweets about the tsunami. AFLAC immediately broke their ties with the comedian.
• The New York Times reports that an employee of New Media Strategies, an agency handling the Twitter account for Chrysler brand, commented on his Twitter account that “I find it ironic that Detroit is known as the Motor City and yet no one here knows how to [expletive] drive.”
• Even law officials are not immune. Indiana Deputy Attorney General Jeff Cox was fired for remarks he made on Twitter, suggesting riot police in Wisconsin should use live ammunition when clearing protesters out of the Wisconsin Capitol building.
• Last year, CNN said it dismissed a senior correspondent who used her Twitter account to praise a Muslim cleric associated with the terror group Hezbollah (removing any sense of objectivity to her reporting).

We lean towards the point of view that one should not blame the tool when it has been misused (like a Little League shortstop throwing down and kicking his glove when he makes an error). Twitter (and similar social media tools) can be a very effective tool for marketing, building relationships and communications. Social Media tools can also create serious issues for employees and their employers. The New York Times reports that George E. Belch, a marketing professor at San Diego State University, reminds employers that “there are people in your company who forget when they post on a blog, on Twitter, on a Facebook page, that it’s out there — and it’s out there at warp speed.” In other words, messages can go “viral” and cause havoc (as in the cases above).

As we’ve said before, it’s important to think carefully about online postings, especially if you’re being paid to represent an organization. And, don't forget: in many ways we all represent our organizations and we do so 24/7. We should all practice being responsible, and being prepared to be accountable for what we write.

2011 Tax Laws: Good News, Bad News

Angelo Tartaro — Tue, 01 Mar 2011 09:20:12 -0500

A First Look at the New "Temporary" Federal Estate Tax Law

Throughout 2010, several of our posts noted that the federal estate tax had expired but that under then-current law, the estate tax was due to come back in 2011 as a more onerous tax. We commented and provided links, for example, discussing the George Steinbrenner estate, some $600,000,000 that would not be subject to the federal estate tax because he died in 2010 instead of 2009 or 2011. Then, in the last days of 2010, a deal was cut between the President and Congress as part of a broader tax package. The estate tax came back but in a (relatively) more benign form.

At this point, we have been able to analyze at least some of the specifics of the new estate tax. It was an interesting compromise. First, the good news: estates worth up to $5,000,000 are excluded (are not taxed) and the highest bracket, at 35%, is significantly lower than the highest bracket of the old tax (45% in 2009 but once as high as 55%). More good news, the $5,000,000 exclusion amount is "portable" which means that a married couple can more easily shelter $10,000,000 from the tax (without the necessity of a special trust).

That "portability" provision is especially interesting. Congress was able to determine that you should be able to "port" only the unused portion of the exclusion of one spouse. You can't accumulate unused exclusions from serial marriages.

But, yes, there is some bad news. The new estate tax is also temporary and will expire in 2013. And, the new estate tax is retroactive - - in a way. Executors of decedents who died in 2010 may elect to have 2010's rules carried over to 2011. Why wouldn't all executors so elect? There is a complex interplay with the capital gains tax and the determination of the cost basis of assets. Some executors will have to perform a careful analysis before deciding how they want to proceed.

These changes apply only to the federal estate tax. States have their own estate tax laws. Connecticut taxes estates over $3.5 million. New York taxes estates over $1.0 million. In both cases, the tax rates are not anywhere near the federal rates but can apply to estates that are excluded from the federal estate tax.

The discussion above is somewhat simplified and we will return to each in future posts to explain these provisions in a little more detail. For now, here are some general takeaways:

• Most estates will not be taxed at all and the focus of most people's estate planning should be on what they want to accomplish with their assets, not on tax avoidance;
• The temporary nature of these provisions keeps the premium on flexibility for those estates that might be on the cusp of the taxable thresholds;
• As always, life insurance, 401(k) plans, jointly owned real estate and other "non-probate" assets can put an estate over the taxable threshold - - people tend to be unaware how "non-probate assets" can build up their taxable estate;
• It may be a good time to review your asset and your will with an estate planning attorney - - if you haven't done so in the last three to five years, it's probably overdue.

Condition of Employment: Facebook Login and Password?

Angelo Tartaro — Thu, 24 Feb 2011 14:09:35 -0500

You have the right to remain silent … about some things . . . when interviewing for a job. It's well known that some questions are off-limits because, for example, they could imply a discriminatory intent. But, do you have the right to keep your Facebook password and login info to yourself when you’re applying for a job? The ACLU says that you do, and they’re going after the Maryland Division of Corrections (MDOC) over the issue.

According to the ACLU, the Division of Corrections “has a blanket requirement that applicants for employment with the division, as well as current employees undergoing recertification, provide the government with their social media account usernames and personal passwords for use in employee background checks.”

An NBC report states that the MDOC simply wanted to make sure that their employees are not engaged in any illicit activities. The MDOC has issued their own statement, defending and explaining their actions: “DPSCS reserves the right to inquire about a possible candidate's Facebook account during the hiring or re-certification process. However, it does not require/demand it as stated in the ACLU release. A candidate's refusal is not grounds for disqualification.”

The motives of the ACLU and plaintiff are not our concern. Neither is MDOC’s claim that a candidate or current employee will not be prejudiced by failing to disclose his or her Facebook information. What we do find interesting is that once again, the issue of electronic privacy within the workplace has arisen, and the courts are being forced to examine how far employers can go, and what liability the employee has.

The latest news is that the MDOC policy has been pulled for the next 45 days as it goes under review. However, as we have said in these columns before, there should be no realistic expectation of privacy anywhere on the internet. Facebook, currently popular and with a high profile, tends to be in the middle of these controversies but the concern should not be limited to this one service.

What's In a Name? It Should Be The Truth

Angelo Tartaro — Mon, 31 Jan 2011 15:05:11 -0500

"Branding" is a hot buzzword these days. Consultants try to teach organizations that are new at it (like small law firms, such as ours, and small businesses in general) how to establish a "brand." More experienced organizations understand the value of their established brands and will vigorously defend them with all the legal means available. Two recent examples involve the State of Vermont and the Taco Bell fast food chain.

The State of Vermont recently directed its legal ire against hamburger giant McDonald’s for the use of the word “maple” in the name of their new breakfast offering, McDonald's Fruit and Maple Oatmeal. According to Bloomberg news reports, Governor Peter Shumlin said the only actual maple ingredient in the product was extracted from the bark of a bush that is a distant relative of the maple tree. The MacDonald's product allegedly did not comply with Vermont's maple laws, which are very specific in the way in which the word “maple” is allowed to be used: Vermont is very protective of its " maple" brand. As Kelly Loftus of the Vermont Agency of Agriculture said, "It is illegal to use the word 'maple' for a product unless the sweetener is 100 percent pure maple. Artificial maple flavoring should be clearly and conspicuously labeled on the principal panel with the term 'artificial flavor'."

McDonald’s reportedly has acquiesced. Bloomberg reports that as of February 1, Vermont customers (and only Vermont customers) can now request that maple syrup or sugar be added to the oatmeal.

Taco Bell has also had to defend a cherished brand. This time, it's not the use of the brand that is at issue; rather, the issue involves the sullying of a valuable brand name. An Alabama law firm has filed a class action lawsuit against Taco Bell. The company is being sued for false advertising for referring to its "seasoned ground beef" in its products. The law firm has alledged that only 35% of the product is beef; the rest is filler, including something called “anti-dusting agent.” MSNBC states that the lawsuit does not seek monetary damages, only that Taco Bell stop claiming that what they are selling is beef.

A statement on the Taco Bell website responds: “Unfortunately, the lawyers in this case elected to sue first and ask questions later -- and got their ‘facts’ absolutely wrong. We plan to take legal action for the false statements being made about our food." While they refer to defending their food, they are really defending their Taco Bell brand.

I find these "brand battles" to be interesting and compelling. I also find the legal and business lessons of these larger, more experienced organizations (whether a state or business entity) to be highly relevant and timely for all of us.

From Soup to Nuts

Beverley Rogers — Mon, 24 Jan 2011 21:23:17 -0500

In addition to its small-town charm and sense of community spirit, Ridgefield is fortunate to have an abundance of excellent restaurants.

Many of these wonderful eateries will offer some of their finest fare at The 12th Annual Taste of Ridgefield. Held at the Ridgefield Community Center on Sunday, Jan. 30, the event will feature offerings from 30 restaurants and businesses in town.

The “Taste” raises funds for the Rotary Club of Ridgefield, which uses the money to support dozens of local charities. My partner Angelo Tartaro and I are proud to be members of this worthwhile organization, which provides many admirable services for the Town.

The first serving is noon to 2:30 p.m., $35 advance, $40 door; second serving is 4 to 6:30 p.m., $40 advance, $45 door.

Whether you're a true "foodie," or someone who just enjoys a pleasant meal out, The Taste offers something for everyone, including a fun (and delicious) opportunity to support the community. Please contact our office if you are interested in attending.

It's A Dog's Life

Angelo Tartaro — Mon, 17 Jan 2011 16:02:10 -0500

I'd like to start the New Year off on a lighter note. Even for lawyers there is more to life than "The Law."

Bringing a dog into your home requires a true commitment of time, energy and patience. But, it's a true joy to dog lovers. And there’s something very special about the bond between a shelter pet and its owners.

In addition to saving a life (many rescue or shelter animals are often scheduled to be euthanized), the pet you bring home often enriches yours. Our family dog has a special role for a disabled family member - - not quite a therapy dog, but close. It's fascinating to watch as genuine, lasting bonds are formed based on canine instincts and human patience.

Bev and I have both had the pleasure – and challenges – of opening our homes more than once to rescued pets. My family and I recently added Maggie, a lab mix, to our family.

There’s been an interesting learning curve for all parties involved, with the rules and regulations for Maggie clearly laid out. There is a consensus ad idemof our unspoken contract; we assume Maggie knows she will have to accept the repercussions from any damages (for example, to the carpet or, in our case, to a remote laid carelessly on a table).

Interested in learning more about pet rescue and adoption? Visit petfinder.com

Toby Rogers

Caveat Emptor (and the Reader, too)

Angelo Tartaro — Wed, 05 Jan 2011 16:10:17 -0500

Do you remember that commercial that opens with a man saying, “I’m not a doctor, but I play one on TV”? It appears that now we could have that type of disclosure with online reviews.

The Federal Trade Commission recently passed regulations that state that advertisers “must disclose any material connection between a person endorsing a product and the company selling the product.” In other words, if you’re being paid to endorse or review something, you’ve got to make that clear from the outset.

This is a good general rule for those writing a blog, Facebook page or “tweeting” on behalf of a company. But it will be interesting to see how this can be enforced with online review sites such as Yelp, Chowhound and even iTunes. The New York Times reported that the FTC had settled charges with a California marketing company that had been alleged to engage in deceptive advertising by having its employees write and post positive reviews of clients’ games in the Apple iTunes Store, without disclosing that they were being paid to do so.

This can also work the other way, with negative reviews. With the loss of inhibition and sense of anonymity that people experience online, reviews may be vicious and can even be defamatory. Additionally, rival companies can post negative “anonymous” reviews about competitive businesses, a practice that’s unethical, but legal (at least superficially, but such reviews can also be defamatory ). Defamatory reviews or comments may not attract the attention of any governmental agencies but can involve significant liabilities through "self-enforcement" (civil lawsuits).

Employers and employees need to be aware of the disclosure rules and the potential costs to their reputation and the business' bottom line. Last year, the Times reports, the State of New York had reached a $300,000 settlement with Lifestyle Lift, a cosmetic surgery outfit, over faked reviews of its products on the Internet.

Whether you call it “astroturfing,” propaganda, or even if you think it's outright fraudulent, the practice falls into an ethical gray area and, in some cases, could ultimately be illegal.

p.s. This Just In: The Wall Street Journal Law Blog reports that a lawsuit involving singer Courtney Love will be tried in February and explores whether defamatory "tweets" can give rise to liability.

Stay tuned....

image courtesy reviewcrew.org

Teach Your Children (using social media...sometimes)

Angelo Tartaro — Wed, 15 Dec 2010 20:45:37 -0500

In a post in this week’s Connecticut Employment Law Blog, Dan Schwartz brings up some compelling points. He notes that while it is legal to “friend” a student or subordinate, it may not be prudent for a teacher or supervisor.

I am in full agreement. But, I would like to point out that there may be some limited instances (“limited” being the key word here) where involving students or subordinates with social media projects might make sense. For example, a site allowing students to share research results for a class project need not contain highly personal material. A site set up for school (or company) alumni to share photos of their reunion also need not include highly personal material. The question is: can limits be maintained on the use of the tools so that the constructive purposes are not canceled out by the downside risks?

CNN recently featured a report about an elementary school in Iowa that uses Facebook to keep in touch with parents and let them know what’s going on in the classroom. Facebook statuses are updated daily, often by the children. A teacher featured in the story remarked that she wanted to show children that “social networking can be a positive tool.”

Teachers shouldn't necessarily shun social media if they can identify projects relevant to the educational goals of their students, who spend a great deal of time online. However, choosing the right tools such as district chat sites or blogs may be a safer option.

As we’ve said before, paraphrasing and extending a recent court decision, no reasonable person can have an expectation of privacy regarding material published on the internet.

* photo courtesy mediabistro.com

Does Social Media Open New Doors for Attorneys?

Angelo Tartaro — Tue, 07 Dec 2010 17:13:45 -0500

There appears to be an emerging need for legal expertise in the areas regarding social media. Last week, the Connecticut Business Litigation Blog posted about this trend. Author N. Kane Bennett states that “as the use of social media continues to grow and involve massive numbers of users, so does the risk of litigation and potential for numerous other legal issues.” Apparently businesses and law firms are recognizing this, too. The CT Business Litigation Blog points out that Citigroup is looking for a new attorney in its ranks, but in what may be a new trend, the Citi job is for Associate General Counsel-Social Media Attorney.

Clorox is also looking for a new attorney who focuses on social media. The publication Advertising Age quoted a Clorox spokesman’s e-mail: "As a newer communication channel, the application of existing laws to this medium is evolving. For those reasons and the rapid pace of communication in the Web 2.0 world, we're seeking an attorney to focus on social media as well as talent rights."

A quick search on an employment site for attorneys revealed at least four firms searching for legal professionals with social media experience. Because this is a relatively new legal area, there seems to be a large range of expertise required, indicating the breadth of impact.

In our firm, our interest tends to focus on employment law and the impact on evidentiary rules in litigation. But, many other issues are involved, especially, intellectual property, contracts and privacy issues.

All of this is good news for law students, who may be needed in newly created positions, but it also offers a lesson to those of us already in the legal profession: we must keep up with the times.

Speaking About Social Media

Angelo Tartaro — Mon, 15 Nov 2010 09:48:50 -0500

Last week, I was invited to participate on a panel for a “Social Media Boot Camp.” I was asked to present material from my blog and answer appropriate questions from the audience. The event was jointly sponsored by the Ridgefield Chamber of Commerce and the Ridgefield Library.

Joining me on the panel were Maria Miranda of Miranda Creative, a social media-based advertising and branding agency, and Kerry Anne Ducey, the author of Talk of the Town, the popular blog about the town of Ridgefield.

I was pleased to learn that the turnout was the largest the Ridgefield Chamber had ever seen at an event like this. There was apparently great local interest in the topic of the escalating field of social media.

Although I was a featured guest on the panel, I learned a great deal that morning. There are scores of social media vehicles emerging every day, and the tools and methods available are overwhelming. As an attorney, however, I recognize that these amazing capabilities raise an array of issues that test our laws and create opportunities for conflict. Privacy issues are of course inherent with anything online, but there are questions about content control and ownership, defamation, litigation impact and employment practices, among others.

I understand that the attendees left with a great deal of knowledge and even more questions than we had time for. The one question most had was, “can you do this again?” My thanks to the Chamber and Library for giving me the opportunity to participate in a very educational and useful event.

Your (Facebook) Friendly Law Enforcement Officer

Angelo Tartaro — Wed, 03 Nov 2010 17:14:21 -0500

Although we don’t practice criminal law, recent articles such as the one in ABC News should spark anyone’s interest. The issue is whether law enforcement authorities can or should become online “friends’ to pursue their criminal investigations.

ABC News reports that an internal Justice Department document states that U.S. law enforcement agents are using social media to surreptitiously collect information on suspects. According to ABC News, the document, obtained through a Freedom of Information Act lawsuit, reveals that agents are browsing targeted individual’s postings, personal photographs and video clips, as well as identifying their friends and relatives. Additionally,according to the report, agents may disguise themselves with false online profiles and exchange messages with suspects.

This, of course, brings up a plethora of issues about privacy and crime-fighting. Where does one draw the proverbial line? How much of the evidence from social networking is admissible in court? The alleged perpetrators in the popular NBC “To Catch a Predator” series claimed entrapment. Fortunately, it seems many suspects are reckless, posting photos of themselves on their Facebook pages enjoying the spoils of their illicit activities.

Recent cases seem to indicate that individual states will be controlling these decisions. California, for example, seems to be more protective of social media privacy than New York.

We’ll keep a close eye on these developments. In the meantime, we advise everyone, whether a Good Guy or Bad Guy, to check privacy settings. And, know who your “friends” are.

Facebook Privacy, Groups & Interface (oh my!)

Angelo Tartaro — Sun, 17 Oct 2010 11:25:22 -0500

Last week, Facebook Founder and CEO Mark Zuckerberg made a much-anticipated announcement about the 500 million user website. Before the press conference, there was much speculation and excitement about what Zuckerberg would reveal, but he simply announced the following changes:

tighter control over Groups to more easily share things with a limited subset of "friends"
an option to download everything you ever uploaded to Facebook
a dashboard in the privacy interface that will more clearly show which Facebook applications have access to your data, and when each application last took advantage of that access.

According to the New York Times, the changes were in response to Facebook’s confusing privacy policy and how it was sharing users’ information on the Web. The Times noted that the press conference was meant to position Zuckerberg as the user’s champion; Facebook was making these changes in response to their comments. After all, according to the Times, he repeatedly said, “it’s not about the money.”

Facebook users who are concerned about privacy will probably find this set of changes to be a step in the right direction. Apparently, they can now have a better look at how applications use their information to personalize their experience.

Also, according to the official Facebook blog, the new Groups setting will allow users to communicate with small groups of friends, and to share things in a “private space.” The default setting is Closed, which means only members see what's going on in a group. This, of course, does not preclude members from adding their own content, or sharing yours with others.

Nick Bilton of the Times observes that some of the privacy issues inherent in Facebook would be reduced if all the settings were “opt-in”; everything should be locked until you open it up, rather than the other way around.

Since our practice includes litigation, often employment litigation, I offer additional perspectives on these changes (1) even information in “private space” is most likely “discoverable” in litigation - - that means you may have to give it up or answer questions about it if you are party or just a witness in a lawsuit; (2) there is a lot of buzz in the legal blogosphere about what information employers can or can’t use and for what purposes (hiring, termination) and I’m sure some general ground rules will soon develop - - but if the information is “THERE”, can any rules be effective, in a practical sense, to restrict its use?

All in all, the social media sites can be helpful in protecting our privacy, but ultimately we all still have to exercise individual discretion.

Post Updates

Angelo Tartaro — Mon, 27 Sep 2010 21:12:45 -0500

When we last left some of our posts, lawsuits were filed, cases were being heard, or legal action was pending. Below are some updates on the stories we’ve been following:

HP v. Oracle:.
Settled, terms undisclosed.

“HP and Oracle today reaffirmed their long-term strategic partnership and the resolution of litigation regarding Mark Hurd's employment at Oracle," said HP.
"While the terms of the settlement are confidential, Mr Hurd will adhere to his obligations to protect HP's confidential information while fulfilling his responsibilities at Oracle."

We might have learned a lot about the law from such a suit but from the settlement we learned a lot about business. It doesn’t pay to get into a squabble with your potential strategic partners.

Does Susan Bysiewicz have what it takes to be the state AG?
Apparently not.

The Connecticut Supreme Court found that Bysiewicz failed to meet the requirements of General Statutes Section 3-124.

Lindsay v. E-Trade
We didn’t actually comment on this case, but it offers a valuable business lesson about guarding intellectual property and avoiding squabbles that are to no one’s advantage.

When is a non-compete not a non-compete?

Angelo Tartaro — Tue, 14 Sep 2010 11:25:28 -0500

…Perhaps when it’s filed in California, as we’ll soon learn.

Last week, technology giant Hewlett-Packard Co filed a lawsuit in California court against ousted CEO Mark Hurd, alleging breach of contract and threatened misappropriation of trade secrets. Hurd, the former head of HP, recently accepted a job as co-president of Oracle, a chief rival.

According to the Associated Press, the lawsuit claims that Oracle hired Hurd “to help steal business from HP.” HP claims that Hurd will inevitably disclose HP's trade secrets and violate the HP confidentiality agreement.

As the Wall Street Journal points out, Hurd agreed to abide for two years by Section 7 of his confidentiality agreement which states that “I will not provide services to a Competitor in any role or position (as an employee, consultant, or otherwise) that would involve Conflicting Business Activities.”

Confidentiality agreements are common, especially in technology fields. A key element not necessarily in HP’s favor is that they filed suit in California Supreme Court. Non-compete clauses haven’t traditionally been easily enforced in California. Their courts have ruled “inevitable disclosure” as being an insufficient cause of action. There must be a threat of misappropriation of trade secrets made overtly by the former employee, or an actual misappropriation of trade secrets by the former employee.

Mr. Hurd’s case is both interesting and unusual because it involves a senior executive position and we can expect HP to claim the most detailed confidential information about the company is carried in his head.

The more usual experience - - in our own Connecticut and New York practice - - is that non-competes have to be reasonable as to time and geographic area. Confidentiality agreements can’t prohibit disclosure of what is commonly non-confidential. But, what we’ve seen is that they are more and more comprehensive even for middle managers. You usually can’t get a severance package without the non-compete and confidentiality agreements.

Speaking of severance packages, Mr. Hurd’s is estimated to be somewhere in the neighborhood of the $40 million mark.

Is Justice Blind? The Beauty Bias at Work

Beverley Rogers — Thu, 05 Aug 2010 21:01:12 -0500

We all know you “can’t judge a book by its cover,” but it seems human nature makes it very difficult to avoid doing so. Endless studies by various sectors have shown that attractive people often have an advantage in the workplace. But now at least one knowledgeable writer is suggesting “there ought to be a law.” Stanford law professor Deborah Rhode, in her new book, The Beauty Bias: The Injustice of Appearance in Law and Life, argues that we should expand discrimination laws, since “discrimination on appearance reinforces stereotypes and undermines basic equal-opportunity principles.”

Should there be stricter anti-discrimination laws to reflect this new awareness and sensitivity? As a firm with an active practice in litigation and employment law, we thought it would be interesting to present both sides of this issue, as we’ve done below.

PRO

A recent Newsweek poll found that in all facets of the workplace, from hiring to daily activities to promotions, looks matter, sometimes even more than education. And, not surprisingly, it’s worse for women.

Take, for example, the case of Debrahlee Lorenzana, who was recently fired from Citibank. Ms. Lorenzana was allegedly dismissed because she was “too good looking.” She has filed a sex discrimination suit which is currently in private arbitration. Since this is a pending matter, we need to await the outcome and keep an open mind as to the merits of either her case or her employer’s. However, the fact there is such a case demonstrates that the issue is starting to surface.

Anti-discrimination laws abound at federal, state and municipal levels. Generally, such laws bar discrimination on the basis of race, sex, religion, national origin and ethnicity. Some jurisdictions have added sexual orientation. According to the Washington Post, only the state of Michigan and six locales have laws that protect against appearance discrimination. Professor Rhode cites research that proves, time and again, that unattractive people are less likely to be hired and promoted, and they earn lower salaries, even in fields in which looks have no obvious relationship to professional duties.

Professor Rhode contends that “stricter anti-discrimination laws could play a modest role in advancing healthier and more inclusive ideals of attractiveness.” Until these laws, are passed, however, the number of cosmetic surgeries performed may continue to rise, along with heel heights (perhaps this would explain the “heel walking workshops” and “Stiletto Strength” classes offered in gyms).

CON
Although Professor Rhodes’ survey probably does reflect reality, experience has shown that not all problems are amenable to a legal resolution.

First, how would you define a protected group? What if a “good-looking” person seeks to wrongly take advantage of the new, expanded laws? Are juries going to conduct beauty contests? Or, for that matter, reverse beauty contests?

Looks or appearance often give sub-conscious and not-so-subconscious cues as to legitimate, job-related characteristics. In some occupations, appearance matters. How will we allow for such judgments?

Will we be compelled to distinguish between “looks” and “appearance.” The latter implies factors like grooming and cleanliness, generally under the individual’s control while the former implies natural, uncontrollable characteristics. I suspect that every day we make judgments based on both and only rarely can we distinguish the two.

The survey and the whole subject is better suited for discussion in an educational, not a legal context. For individuals, self-help education can help them make the best use of what one has. For managers, these discussions can help them learn how to make personnel decisions more effectively.

Million-Heirs Cashing in on the Estate Tax Lapse

Angelo Tartaro — Fri, 16 Jul 2010 10:23:07 -0500

George Steinbrenner passed away earlier this week. The man left behind an extraordinary legacy, a controversial reputation, and an estate estimated at more than $1.3 billion by Forbes Magazine.

With the estate tax lapsed this year, Mr. Steinbrenner’s heirs may not have to pay hundreds of millions of dollars in taxes on what they’re about to inherit.

According to the Wall Street Journal, wealthy people who die before 2011 will spare their heirs a hefty 45% tax fee. This situation has all the makings of a potentially great homicide novel (someone hastens the death of a rich uncle), not to mention a plethora of legal and ethical quandaries.

It’s never wise to make life and death decisions based on finances and estates. But when the New Year is rung in, the Journal reports, the top tax rate will jump to 55%, and the federal estate tax exemption amount will shrink from $3.5 million per individual in 2009 to just $1 million.

In the meantime, we’ll watch the Steinbrenner situation play out. “The Boss” is survived by his wife and four children. The ABA Journal posts that a marital deduction likely would have applied if he had died in 2009 or 2011. Under federal law, probate transfers among spouses are tax-free. But, according to Forbes magazine, “the absence of the estate tax could set up an intriguing scenario in which Steinbrenner’s spouse could disclaim a bequest, allowing assets to move to the next generation.” Of course, his estate is going to be very complex and not a guide for more typical situations.

For those of us not needing to worry about the millions or billions we leave behind for our loved ones, it’s best to consult an estate planning attorney who can help make decisions based on law (regardless of how confusing it may seem).