Legal Articles

According to the Staff Audit Practice Alert No 3 from the Public Company Accounting Oversight Board, auditors of public firms that have to comply with the Sarbanes Oxley Act of 2002 should give specific consideration to the new and elevated risks after the current market crisis, and should adjust their audit procedures.

One of the areas of concern: Off-balance-sheet arrangements and Special Purpose Entities (again), especially the entities known as Qualifying Special Purpose Entity (QSPEs) and Variable Interest Entities (VIEs).

Qualifying Special Purpose Entity (QSPE)

According to the Statement of Financial Accounting Standards No. 140 from the Financial Accounting Standards Board, a QSPE is a legal vehicle (like a trust) that:

 - It is distinct from the transferor

 - Performs significantly limited activities (so banks, insurance firms, pension plans and investment firms are not sufficiently limited and can not become qualifying SPEs).

 - May hold only financial assets transferred to it that are passive (the holder in making decisions only about servicing). Examples are passive derivative financial instruments, guarantees or rights to collateral.

Variable Interest Entities (VIE)

A VIE is often a holding company, created by another legal entity to hold assets or debt, to carry out operations or handle corporations, partnerships, trusts and limited liability companies. A VIE usually does not have the capital to support itself, so by design it is supported by another entity. The “primary beneficiary” (that has a controlling financial interest in the variable interest entity) consolidates the VIE (assets, liabilities, and profit).

There are several types of “variable interest” like loans, leases, call options, equity investments, written put options, forward contracts, derivatives, guarantees, credit enhancements etc.

According to the FASB Staff Position (FSP) FAS 140-4 and FIN 46(R)-8, public companies must disclose more about transfers of financial assets to QSPEs and VIEs.

Primary beneficiaries, servicers, holders of significant variable interests, transferors and sponsors are primarily affected.

According to the Public Company Accounting Oversight Board, the tough economic environment after the current market crisis led public companies to provide guarantees and financial support to QSPEs and VIEs. They have a “variable interest” or have increased their exposure to the above described entities, and perhaps they gave become a “primary beneficiary”.

Their investors have a need to know. Their auditors have the obligation to ask the proper questions. The disclosures about transfers of financial assets in VIEs and QSPEs are meaningful and necessary.

The Visa Waiver Program (VWP) enables nationals of certain countries to travel to the United States for tourism or business for stays of 90 days or less without obtaining a visa. The program was established in 1986 with the objective of eliminating unnecessary barriers to travel, stimulating the tourism industry, and permitting the Department of State to focus consular resources in other areas. VWP eligible travelers may apply for a visa, if they prefer to do so.

Currently, 27 countries participate in the Visa Waiver Program, as shown below:

1. Andorra
2. Australia
3. Austria
4. Belgium
5. Brunei
6. Denmark
7. Finland
8. France
9. Germany
10. Iceland
11. Ireland
12. Italy
13. Japan
14. Liechtenstein
15. Luxembourg
16. Monaco
17. Netherlands
18. New Zealand
19. Norway
20. Portugal
21. San Marino
22. Singapore
23. Slovenia
24. Spain
25. Sweden
26. Switzerland
27. United Kingdom

The Department of Homeland Security recently signed the Visa Waiver Program (VWP) Memoranda of Understanding (MOU) with Slovakia, Hungary, Lithuania, Estonia, Latvia, Czech Republic, Malta, and Korea government representatives.

These MOU’s do not admit these countries into the Visa Waiver Program; they are agreements for further cooperation on the security provisions that are required under the new VWP law. They are only a first step in working out details for the entire array of security and information sharing commitments found in VWP law.

Nationals of VWP countries must meet the conditions noted in the section above in order to seek admission to the United States under the Visa Waiver Program. Travelers who do not meet these conditions must apply for a visa. In particular, a visa must be requested if the traveler:

* Wants to remain in the United States for longer than 90 days, or envisions that they may wish to change their status (from tourism to student, etc.) once in the United States;

* Wants to work or study in the United States, wants to come to the United States for other purposes not allowed on a visitor visa, or intends to immigrate to the United States;

* Does not have a machine-readable passport (MRP) issued or renewed/extended before 10/26/05, or is unable to meet other requirements outlined above for passports issued on or after October 26, 2005 or October 26, 2006.

* Intends to travel by private aircraft or other non-signatory air or sea carriers to the United States;

* Has been refused a visa or admission to the United States before, or did not comply with the conditions of previous VWP admissions (90 days or less stay for tourism or business, etc.); or

* Has a criminal record or other condition making them ineligible for a visa.

An employment law solicitor can assist with all sorts of employment related questions and scenarios, and doesn’t just deal with court cases, or the unpleasant aspects of working life. You might not understand the legal implications of your amended contracts, or perhaps want to introduce a staff handbook.

1. Employees

For employees, employment law can be used to ensure that your employers are acting within the law. This could be relating to redundancies, unfair dismissal, bullying or discrimination in the workplace. Employment law solicitors can also help employees to understand their contract of employment, to make sure that it is not unfair or discriminatory.

2. Employers

For employers, an employment law solicitor can help with the writing of contracts of employment to make sure that they are legal, and that workers’ rights are adhered to. Staff handbooks and internal policies and procedures will need to be kept up to date to ensure that there are no discriminatory policies or procedures. Changing technologies in the workplace may mean that a computer use or mobile phone policy needs amending or adding.

3. Other Options

If the employment law solicitor is being hired by an employee or employer for representation, then this is usually a last resort. It is better for the aggrieved employee to discuss the matter with their manager, the HR department or at a tribunal first. If the outcome of this is unsatisfactory, then taking legal advice might be the only course of action left.

4. Experience

You will already know how you want your employment law solicitor to help you. You just want a bit of guidance, or you may want representation in a court case. The firm of solicitors you choose should have the right sort of skills and experience to help you. A solicitors that specialises in family law, or residential conveyancing, or personal injury claims, might not be able to provide the service that you need. You might need help with rewriting an accessibility policy, or feel that you have been discriminated against. A firm of solicitors that only deals with employment law cases will be much more likely to help you to achieve the outcome that you want.

5. Both Sides

Both the employee and the employer will need legal representation, so that the employer and employee can take the matter further, if it can’t be resolved in house. Depending on the case, an employment law solicitor that specialises in a particular aspect of employment law, such as contracts, or racism in the workplace may be required.

If you are an employer and want help writing a contract of employment, or an employee thinking you may have been discriminated against by a colleague, why not see how an employment law solicitor can help you.

The Federal Aviation Administration needs to overhaul its rules and regulations and stop hurting general aviation. Additionally the Federal Aviation Administration, which my grandfather use to work at and was in charge of a large airport has completely gone overboard. Now they are making rules for private space flights.

It appears that FAA or Federal Aviation Administration has been getting too big for its britches. In fact, not only do they wish to control all the air space. Now they want to control all of space itself including the entire universe and play God. The FAA needs a rules and regulations overhaul and the sooner the better.

We have more flights than ever before in the airlines and more air cargo transportation. We have new UAVs and other flying craft and it is time to simplify the rules not make them bigger. The blob of bureaucracy at the FAA is totally out of control and it is quite obvious when you consider that the Federal Aviation Administration was so quick to make rules for the privatization of spacecraft.

Now as a pilot myself I can tell you that the federal aviation administration regulations and rules for general aviation are completely absurd and they think they own all the air we breath. It’s time for a complete overhaul of the FAA rules and regulations and it is time that we just start over. Consider this in 2006.

Personal injuries can result due to various reasons. They may occur due to road traffic accidents, at workplace, due to burns, slip, trip or fall and so on. If you or anyone known to you has been in such a situation, you can make a claim. To make a successful claim, it is advisable you seek advice form accident claims specialists. They can guide a claimant on the procedure of making a claim. You can also make approach no win no pay accident claim company.

To make a successful claim, you must be able to prove that someone else was responsible for the accident. You can prove this through medical reports stating the cause of injury, the extent of injury and losses suffered, eyewitness and so on. For this type of claim, you need not pay any fee. The claims case is also known as conditional fee agreement. No win no pay accident claim company can help get suitable compensation for the losses suffered.

A team of experienced accident claims solicitors can help get compensation. You can also seek advice from online claims specialists who can provide answers to all the queries. It is a hassle free manner of making a claim. You need not pay any fee for the service. The solicitors have abundant experience in handling such cases. Talking to experienced claims lawyers will help you get suitable compensation. They will assess the case and suggest the best possible solution. You can even get compensation for even small whiplash injuries.

Most of the claimants opt for conditional fee agreements. This is the most commonly used method for making a claim. No win no fee solicitors who act under a conditional fee agreement are entitled to charge a legal fee if they succeed in winning the claim and recover compensation for the client. The fee is paid by the loser or their insurance company. If the claim is unsuccessful, the lawyer accepts the risk that they may not be able to claim costs and if he loses the claim then he must write off his fees. Many of the claimants presume that legal action can be expensive. However, this is not true. A team of specialist personal injury solicitors will study the case in depth and provide guidance on how good the chances of making a claim are. No win no fee solicitors will help pay compensation in full with no deductions. The claim is risk free and you don’t have to fund the claim.

White Collar Sentencing Consultants, Inc. specializes in important federal criminal cases. We complete your legal defense team.

White collar defendants and their families need answers. You want to know about prison, how to reduce the length of the prison term, and how to ease your transition to and from prison.

We know the answers.

We use our experience to give you credible, clear, and candid information when it is needed most.

No other company provides our services because no other company has our dedicated staff. The heart of our company is an experienced attorney who has tried over 100 jury trials. He also recently spent 15 months in Federal Prison where he worked as the Lompoc Camp “clerk” until early 2008. His duties there included resolving the complaints and problems of over 600 prisoners, with staff contact at all levels of administration. He can answer your questions and provide counsel through this process with compassion and commitment because he has been there. He has the unique and valuable perspective of a lawyer who was an inmate.

Our services include:

* Consulting with White Collar defendants, their family and defense counsel

* Analyzing issues relevant to mitigation of potential sentences

* Comparing your options such as placement and programs

* Describing strategic alternatives

Benefits include:

* Calmer and more informed clients

* Better utilization of attorney time

* Credible answers from a credible resource

White Collar Sentencing Consultants can provide benefits to our clients as soon as the legal defense team is assembled. One of the first crucial events that receive our attention is the preparation for the PSR/PSI report. Defense counsel know how important this document is to the sentencing recommendation. You may not know how many other ways this document is used that impact the client. For example, for one client, medical information was proposed to be set forth in a PSR/PSI.

This information was proposed to be used because it may have had a nominal impact at sentencing, if any. However, had the information been included in the final version of the report, the BOP would have applied their regulations and could have recommended placement of the client in a far-away medical facility. We were able to avoid this result early and the client received placement at the federal prison location closest to his young family.

In another recent case, a former lawyer who was represented by a prominent attorney appeared at a sentencing hearing to get a pre-negotiated prison term. He had not hired us. During the hearing his experienced attorney successfully argued for a three month reduction in the agreed length of the sentence. Although this sounds like a wonderful result, a result that would confirm the value of that defense attorney, it was not.

Neither the client, who had been a lawyer, nor his criminal defense attorney, realized the mistake. As a result of a three-month reduction in the sentence, the client was no longer eligible for a reduction of 15 months! Yes, due to the rules governing programs available to prisoners, the defendant was no longer eligible for a major reduction in his sentence.

Had we been hired at the right time, this tragic mistake would have been avoided. Still, we were able to arrange for an appropriate job assignment for the defendant. We were also able to arrange for his wife and family to visit him within days of his arrival at prison.

In still another case, even though we were consulted late in the process, we were able to obtain placement for a defendant into a program resulting in an 18-month reduction in the length of his incarceration. The 9th Circuit decided a case that had an effect on our client and we were able to take advantage of this development even though our client had been in prison for almost 2 years already. We keep informed of developments that provide benefits to our clients.

Our clients are armed with the information they need to obtain the best results. They can be placed in the appropriate location for the shortest period of time. They can take advantage of programs that are available, programs that may not be known to defense attorneys because they have not been in the system. And once incarcerated, our clients will know how to avoid mistakes. Significant attention is given to preparing our clients emotionally to deal with the adjustments required to assimilate into prison.

Mistakes in prison lead to harsh results. By avoiding mistakes, by knowing what to expect, our clients will not have to experience the draconian punishments used by staff, such as solitary confinement, and transfers to other prisons that are either more dangerous or farther from home.

Elder financial abuse has existed for as long as elders have owned property and money. This article will discuss seven key elements to identify and combat elder financial abuse, and to recover what was wrongfully taken.

Key # 1: Age

In California, an “elder” is defined as someone 65 years of age or older. Age is an important factor because an “elder” is entitled to the remedies provided under the Elder Abuse and Dependent Adult Civil Protection Act, known as “EADACPA”.

Key # 2: Mental Capacity

Probate Code 811 provides a list of mental categories that a psychologist or medical doctor can use to assess an elder’s mental capacity. When you read this statute, you might think that you’d need a Master’s Degree in order to pass this “test”. It covers such assessments as logical thinking, analytical ability, and memory. However, a poor score in any one category does not warrant a determination that the elder lacks sufficient mental capacity.

In elder financial abuse cases, the mental capacity assessment must be focused in the context of a particular transaction, and the conclusion will be whether or not the elder possessed mental capacity at the time of the transaction.

For example, the question may be whether an elder had the mental capacity to sign a grant deed that transferred title of a home to a caregiver. In performing the mental capacity evaluation, the psychologist or psychiatrist will make this determination based upon the elder’s performance when the assessment is given.

The bottom line purpose of the test: At the time the elder signed the Grant Deed, did s/he have the mental capacity to understand that title to the home was being transferred to the caregiver?

This can be a challenging task for the evaluator, particularly when the Grant Deed was signed three years or more prior to the mental evaluation. It then becomes a forensic evaluation, and the mental capacity issue may have to be determined by a review of the elder’s medical and/or psychological records during the months leading up to the date the Grant Deed was signed. Sometimes, no such records exist and the evidence of mental incapacity must be obtained from other sources.

Key # 3: Identifying Elder Financial Abuse — Undue Influence

First of all, not all “influence” is undue. A wife of 40 years certainly “influences” her husband, and vice versa. There is nothing inherently wrong with this type of influence.

The type of influence that is “undue” takes place when one person takes advantage of another’s weaker state of mind. There are statutes and numerous cases that provide both definitions and factual backgrounds to illustrate various scenarios when such undue influence was used to manipulate and coerce an elder into unknowingly parting with their property and money.

Key # 4: Combating Elder Financial Abuse — EADACPA

The EADACPA statutes, under the Welfare & Institutions Code, provide nearly every remedy under the sun. Interestingly, EADACPA was enacted to provide an incentive for lawyers to take on elder abuse cases. Before EADACPA, attorneys were reluctant to accept such cases because their clients were often of ill-health and would sometimes die before their case went to trial. The right to recover “general damages” for pain and suffering would also die. A lawyer may have worked hundreds of hours on the case, and then “lose” because his client passed away before trial.

However, under EADACPA, the case continues even if the elder passes away during litigation. The elder’s family (successor in interest) is entitled to post-mortem recovery for pain and suffering, along with all other remedies allowed. Now, attorneys are more likely to accept such cases and devote the time and energy needed to litigate.

To prove an EADACPA claim, it must be shown by “clear and convincing” evidence that the defendant’s acts were done with “malice, oppression, fraud or recklessness”. This is a much higher burden of proof than the standard of a “preponderance of the evidence” that is required in most other civil cases.

However, a successful EADACPA claim will allow recovery of special damages, general damages, punitive damages, attorney fees and costs, as well as the potential for “enhanced remedies”.

Key 5: Common types of elder financial abuse

Elder abuse occurs in a myriad of ways. Somewhat ironically, the majority of perpetrators are the ones to whom the elder often devoted his/her life to: their children.

Financial powers of attorney are a classic form of financial abuse. Given this document, the “agent” can perform any financial transaction that the elder could, including mortgaging or selling the home and withdrawing money from bank accounts. Placed into the wrong hands, this document can become a “license to steal”.

Often, the elder signed the power of attorney many years ago and has forgotten all about it. Or, the bad son or daughter simply tricks their aging parent into signing.

A typical scenario involves a son or daughter who uses manipulation and trickery to have title to the elder’s home transferred. Often the home is owned outright, and the perpetrator can easily obtain an equity line of credit or other type of loan.

Unfortunately, these loans are often defaulted on for non-payment, leaving the elder to face eviction proceedings — totally unaware of how they became a victim.

Key # 6: Civil and Criminal Litigation

Fortunately, there are remedies available. Many of these cases are both civil and criminal in nature.

Penal Code Section 368 is very similar to the EADACPA statute, and can be prosecuted by the District Attorney’s Office — if they have the resources and personnel. California mandates that each county have an elder abuse prosecution unit; however, some counties lack sufficient funds and can spare only one deputy district attorney to handle all of the cases. They are often overwhelmed and unable to promptly respond.

Civilly, these cases can be brought under the EDACPA statues. If the client is 70+ years old, then a motion for preferential setting can be brought that requests a quick trial date. If granted, then a trial must take place within 120 days.

Key # 7: Recovery of property & money

Acting quickly is critical. Action must be taken immediately to stop the perpetrator from stealing any more property or money.

If title to a home has been transferred, then a Notice of Pending Real Property Claim (lis pendens) must be recorded with the County Recorder’s Office where the real property is located. Remember, this is a notice of a “pending claim”. The “pending claim” is the civil lawsuit that has been filed with the Court. There must be a pending court case (challenging ownership to the property) before a lis pendens can be recorded.

If the bad guy is making withdrawals from bank accounts, then the bank must immediately be notified. Remember: all bank employees are now “mandated reporters” and must alert law enforcement when elder financial abuse is reasonably suspected.

Understanding these seven key elements will assist elders, their family and loved ones to prevent financial abuse and to take quick action to recover property and money when such abuse has already occurred.

No one wants to think about getting in an auto accident.

But if you’re among the millions of people involved in collisions on our nation’s roads each year, you need to be familiar with the process so you can protect yourself. After all, how you react can reduce your costs and speed up the repair process.

So if you find yourself in a car accident, try to remain calm and follow these steps:

o Step 1: Make safety your priority. Move your car to a location out of traffic if it poses danger to yourself and others. Help or get help for injured people. If you can’t move your car, then remain inside with your seatbelt on. Call 911 to contact the police.

o Step 2: Begin collecting information. Exchange contact and insurance information with other drivers involved (getting contact information from witnesses is beneficial as well). Also, write down descriptions of each car involved in the accident.

o Step 3: Remain polite. Do your best to be respectful to others involved in the accident as well as the police, but always speak with your attorney before accepting any blame or giving statements

o Step 4: Report the accident. Tell your insurance agent about any damages as soon as possible and file a claim. If you’re seeking compensation for your injuries or damages, you’ll need to file a claim with the other driver’s insurance company as well.

Occasionally, your car accident will require additional action. If you need legal advice when making your claim, an attorney experienced in dealing with personal injuries cases can help you. If legal action is necessary, an attorney will often accept your case on a contingency basis. That means you don’t pay attorney fees unless a recovery is made on your behalf.

Unfortunately, you have no way of knowing if the other driver(s) involved will report the accident to his insurance company. In some cases, he may even declare injuries that weren’t apparent after the collision.

This is why it’s important you document as much information as possible Also, even if your insurance company needs to compensate someone for injuries or damages, you can sometimes avoid a premium hike if the payment is below a certain amount.

All major corporations in every country all over the world are the ones which are labor-intensive. Due to the large number of employees and workers in such establishments, labor issues are rampant. The sad fact is that, it is also where most labor law violations are intensified.

These corporations are so consumed with accumulating huge productions and high profit but fail to give necessary attention to the people who strive to attain such goals. Ironically, as corporations continue to become successful and profits skyrocket, they flagrantly forget to give due credit and recognition to their employees and workers who were the main force in achieving their success.

Instead of receiving more employment benefit packages as reward for attaining high quota, employees find that their legal rights as workers, basically stipulated in state and federal labor laws are being violated. Instead of a higher income, they find themselves confronted with a scheme that pinched their salaries and long standing benefits.

In order to take steps to correct such injustices, the employees themselves need to act on it. Instead of bearing with the unfair labor practices and labor law violations they encounter, they must fight back.

An example of employee’s united stand against violation of labor laws had glowing results. In a recent ruling by a Philadelphia jury, the mega - corporation Wal-Mart was declared to have committed gross violation of state labor laws. Wal - Mart was penalized heavily for this, amounts to $78.5 million. Furthermore, after the jury ruled that the Wal-Mart company acted in “bad faith” towards the case, the plaintiff’s attorney also sought for an additional $62 million.

The class-action suit involved almost 200,000 employees and “have-been” employees of Wal-Mart and Sam’s Club. They may stand to win up to $140.5 million.

It appears that Wal-Mart has a long list of labor law violations but the issues highlighted in the lawsuit were the avoidance of paying legally required overtime and the reduction or complete disregard of employee’s right to breaks or rest.

A lady - employee who was the lead plaintiff in the lawsuit related that she was assigned to work in any department for 8 - 12 hours every month in keeping with the pressures of Wal-Mart management but was unpaid for it.

The hard-won victory of Wal-Mart employees against the violations of its management is an admirable feat. It should be an inspiration for other employees of giant corporations that are assiduously avoiding workers’ rights.

The time has come for these corporations to take a beating for violating their employees’ rights and the state and federal government as well. They must know that employees are the pillars and life support of their companies and it is high time to give respect and recognition due for them.

After reading about Common-Law, you’re probably wondering why you’d even be interested in getting a Federal Trademark for your name. Well, let’s break down the key reasons as provided by the USPTO.

1) Constructive notice nationwide of the trademark owner’s claim

Essentially, this means that no other party will have the right to use the same or confusingly similar name throughout the US. It also means you can use the ® symbol. Prior to registration, you’d use the TM symbol - this denotes that the application is pending.

2) Evidence of ownership of the trademark

The records of the USPTO are public and therefore, it’ll be obvious you own the Federal trademark.

3) Jurisdiction of federal courts may be invoked

Should another party infringe on your Federal trademark rights, you’ll be able to use the Federal court system.

4) Registration can be used as a basis for obtaining registration in foreign countries

If you do want to extend outside of the US, you’ll be able to use your US Federal trademark registration as a claim for priority.

5) Registration may be filed with U.S. Customs Service to prevent importation of infringing foreign goods

You’ll be able to record your Federal trademark with U.S. Customs & Border Protection to prevent the importation of goods that infringe upon your mark. Read more here.

All of the above advantages are yours once you obtain a Federal trademark. However, all of the above can only be yours once you know that the mark is truly available AND the application has been completed correctly.