by Scott Raymond Maucere
Now it’s time for a little holiday fun.
The first installment of Peter Jackson’s adaptation of J. R. R. Tolkien’s literature classic The Hobbit comes out this week. Confession: I’ve been imagining the release of this film since I first read the novel when I was 13. And in honor of this red-letter week, my blog post will be about The Hobbit.
And in addition to being a fan, since I’m a lawyer who drafts and litigates contracts and transnational agreements for a living, it’s only natural that I would involuntarily analyze what is perhaps the most famous legal agreement in all of modern literature: Bilbo Baggins’ contract with Thorin Oakenshield and his Company of Dwarves. Specifically, is that contract legally enforceable? (more…)Read More
While the largest law firms in the world have undeniable reach and the resources to support the largest of global companies, more often then not lately the sheer weight of their own trappings has caused them to implode upon themselves. This week marks the filing of bankruptcy of one of the largest “biglaw” firms in the US, NY’s Dewey & LeBouf. The New York Times’ very good article is here:
The takeaway? That more often than not the biggest doesn’t mean the best. The article cites trends that are seen across the biggest firms in the world: enormous size, extremely expensive legal talent, huge overhead. The elephant in the biglaw conference room that the article doesn’t mention is that these costs are directly passed on to the client. Expensive lawyers and offices mean your legal bills go up. They sell on size but not efficiency, perceived resources and image, but not service and relationships. Biglaw has their place, but unless you’re at the top of the Fortune 100 list, it may not be the place for you. When looking for a lawyer, ask yourself if the biggest firm and the highest rates is really the best place for you to rely on.Read More
Legal terms often have different meanings, depending on where you live.
Read the full text here: http://www.mentalfloss.com/blogs/archives/117999#ixzz1nGh0mzGn
–brought to you by mental_floss!
On 5 April, Attorney Scott Raymond Maucere, was admitted on motion to practice before the Court of International Trade and the United States Court of Appeals for the Federal Circuit. Mr. Maucere, managing member of southeast boutique law firm Maucere Law Group LLC, was sworn in before the two courts in special session at the historic US Court of Appeals for the Federal Circuit complex, which includes the landmark Dolly Madison House on Lafayette Square.
The Court of International Trade hears cases involving customs disputes, tariffs and duties, and other trade litigation. The CIT sits in New York City. The Court of Appeals for the Federal Circuit also has a very limited jurisdiction, and hears appeals from the CIT, as well as appeals on trademark and other issues. The CAFC sits in Washington, DC.
Both courts have jurisdiction related to Mr. Maucere’s international practice. Says Maucere: “Admission to these courts allows me to engage in international trade litigation, which expands the level of services that I can provide my clients without having to go to Chicago or New York. There’s not many firms in the region that can offer that.”
To find out how Mr. Maucere can help you with your international trade matters, please contact him at email@example.com or at +1 423.855.1755.Read More
Carrie Lukas has a fascinating article in the Wall Street Journal asserting that there is no systematic wage gap between genders. She argues that any overall differences can be explained by data showing that men, on average, work more and are willing to trade more quality of life for wages than women.
Even assuming that her data and analysis is accurate, bear in mind that her arguments only apply to the averages. Wage discrimination can and does still occur in some situations, against either gender. Remember also that the alleged wage gap, true or not, is perceived by many, and a smart employer will want to ensure that the perceptions of differences are avoided just as well as the employer avoids actual differences.Read More
As you probably recall, Florida Federal Judge Roger Vinson ruled that the “individual mandate” provision of the recent health care reform bill was unconstitutional. Judge Vinson’s ruling determined that the individual mandate, which requires that each individual have health care insurance or pay a fine, was not severable from the rest of the bill; therefore, the entire law was unenforceable.
Although a review of this sort of complex and controversial legislation would normally take many months, the 11th Circuit Court of Appeals, in Atlanta, Georgia, has agreed to fast-track it to hearings on June 8, 2011. The court will determine not only whether the individual mandate is constitutional, but also whether the rest of the law can be enforced without it.
Judge Vinson is not the only judge to make a ruling on the Health care Reform law. Judges in Virginia and Michigan have ruled that it is constitutional, and a different judge in Virginia has ruled it unconstitutional on similar grounds as the Florida court.Read More
If one of them was purchased from Amazon.com, the answer, according to the Alliance for Main Street Fairness, is “sales tax.”
According to the Chattanooga Times Free Press, the Arlington, Virginia based retailers’ group is running a series of ads intending to call out what it deems to be the basic unfairness of allowing a large retailer like Amazon to sell goods without sales taxes.
Amazon is able to routinely sell products without regards for state sales tax based on the 1992 U.S. Supreme Court decision Quill Corp. v. North Dakota, which held that a state cannot compel sales taxes on sales from a retailer which doesn’t have a physical presence within the state. Because Amazon is opening up a distribution center here in the Chattanooga area, it will soon have that physical presence which would allow the state to impose these taxes, should the state choose to impose them. Tennessee is one of the nine states that have no income taxes, and most of its budget comes from sales taxes.Read More
The Consumerist is soliciting stories from people who have had experiences which made them determine that they would “never again” interact with that business. Interesting and informative read.Read More
Almost 40 years ago, Michael Corleone told us that “It’s not personal. . . it’s strictly business.” Now, thanks to Amazon, even the business of gift-giving may lose that personal touch.
Amazon.com, who recently announced plans to build a distribution center in Chattanooga, Tennessee, has recently patented a process which would allow gift recipients to “flag” loved ones whose gift choices tend to be less than ideal. Under this process, the potential recipient would be allowed to automatically exchange the gift, without receiving it first, for a gift certificate, rather than go through the hassle of returning the unwanted trinket.
Now, don’t think that Amazon developed this process entirely out of good will towards their suffering gift recipients, to allow them to avoid the time and postage associated with returns. Retailers spend a great deal of time and effort, which translates to money, in restocking returned merchandise. (Hence the popularity of re-stocking fees at some retailers, despite the frustrations they cause customers.) With this process, Amazon will benefit because it never has to restock the item, because it will never have truely been purchased in the first place. One could even argue that the gift-giver benefits, in that he or she will be assured that his or her loved one gets a gift that is wanted, rather than one which must be “dealt with.”
But not everyone is thrilled about the economic win-win. Gizmodo calls it “terrible” and throws in a few “Scrooge” references; Anna Post, great granddaughter of etiquette maven Emily Post, states that it “totally misses the spirit of gift-giving.”
It’s a unique idea, and it should save Amazon some needless expenses. But sometimes, retailers must understand that what makes economic sense doesn’t always make practical sense to their customers. It remains to be seen whether this will work in Amazon’s favor.Read More
Tomorrow, March 22, the U.S. Congress Small Business Committee will host a forum dedicated to the needs and concerns of small businesses in the Tennessee area. This forum will be hosted by 3rd district congressman Chuck Fleishmann (R-TN) and Congressman Sam Graves (R-MO), chairman of the House Small Business Committee. A spokesman for Rep. Fleishmann says that they look forward to discussing the interests of small business people as well as the opportunity to show off the University of Tennessee at Chattanooga and the greater city.
More information can be found here.Read More
Or, is it a fake treatment, if it is effective?
Slate magazine has a facinating article about the use of placebos in medicine as a valid treatment of symptoms. The use of placebos is prohibited by the American Medical Association, but only if the patient doesn’t consent. Pediatrician Adrian Sandler, in treating children with ADHD, found away around this by giving half of the normal dose of the standard drug along with the placebo, and advising the patients and their parents that this regimine “had the potential” to control their symptoms.
He tested the idea in 99 children, randomly assigned to one of three treatments. The first group continued to take their regular dose of medication, another took half their optimal dose, and the third was instructed to take a half dose of their meds plus a placebo pill that was described as a “dose extender.” Before the study began, researchers explained to the parents and the kids, aged 6 to 12, that the dose extender contained no active ingredient. After eight weeks, the symptoms of ADHD had grown more severe in kids who took only a half dose, but they remained stable in the groups that received either the full dose or the half dose plus placebo.
In medicine, it is crucial to have a patient’s informed consent to any treatment. Here, the doctor got the consent, but the way that he framed it was designed to ilicite a particular response from the patient. The question remains whether the fact that this treatment appears to work outweighs the potential deception that goes along with it.Read More
The Wall Street Journal has an interesting interview with Dr. Giovanni Colella, co-founder of the company Castlight. This business’s goal is to “cast light” on medical spending to allow consumers and business to better predict and manage their healthcare costs.
Interesting idea for a very necessary product.Read More
Governor Phil Bredesen joins Economic and Community Development Commissioner Matt Kisber in announcing Amazon.com, Inc. has finalized its commitment to establish two fulfillment centers in Tennessee, one at the Enterprise South Industrial Park in Chattanooga and the other along State Route 308 in neighboring Bradley County. Amazon.com.dedc, LLC plans to invest a combined total of up to $139 million to construct the two new facilities, with up to 1,400 jobs expected to be created in the next three years, in addition to hundreds of additional seasonal jobs during peak season. The new fulfillment centers are expected to be operational before the 2011 holiday season.
A primer for non-U.S. companies facing litigation in the States
Chances are, at some point in your company’s future, you’ll be involved in legal disputes. If you have commercial activity in the United States, you may be subject to legal proceedings in the United States, even though you are not a U.S. company. The legal system in the U.S. is increasingly complex and unique and there are many pitfalls that must be avoided in order to successfully navigate a lawsuit. Litigation in the U.S. is often lengthy and can be very expensive. The first steps you take when sued are vital to protecting your legal interests and assets.
What follows is a brief primer on what to expect when you receive notice that you have been sued in the U.S. and what to do about it. Remember, it is vitally important for you to consult legal counsel as soon as possible for them to assist you in your company’s protection.
The U.S. Legal System
The United States is a common law nation. That means that in addition to the many statutes and legislation that put the nation’s laws into place, the U.S. courts regularly rely on past “common law” decisions by other courts in determining the legal principles and laws that apply in resolving disputes. This concept is unique in much of the world, and gives a great breadth of power and lawmaking ability to judges in deciding commercial and business cases.
Lawsuits typically are filed in one of two types of courts: Federal courts (courts put in place by and governed by federal law) or state courts (courts subject to the laws of the fifty States). The laws and procedures governing the different courts are sometimes similar but vary in very important ways. Both federal and state courts have a complex system of appeals courts in which parties may request review of decisions made by lower courts. The United States Supreme Court is the highest court in the United States, and in special circumstances some cases may be appealed as far as this court.
Appeals in all U.S. courts are common. This is one of the many reasons that litigation in the U.S. can be so expensive and prolonged. It often take several years from the start of a lawsuit until the case is finally decided by an appeals court. Litigation itself is very common in the U.S., and filing a lawsuit is fairly easy. Whether or not a court has the power to hear a particular matter is called its jurisdiction. Different courts have different jurisdictions. Whether a court has jurisdiction is determined by looking at both the subject matter of the controversy, and at the company or party that is being sued—whether based on that company’s presence in a particular jurisdiction or the nature of the company’s business there. This is called personal jurisdiction, and it is very complex, but vitally important to determining whether a non-U.S. company can be sued in U.S. courts.
Courts in the United States may only exercise personal jurisdiction over a non-U.S. party if the party has sufficient “minimum contacts” with the state or district of a particular court. Minimum contacts may be established by the defendant having committed some act in the state, contracting to provide or receive goods or services from that state, or owning property within the state. Determining whether a party has minimum contacts is a highly complex art that is determined on a case-by-case basis. However, in today’s global economy, personal jurisdiction and minimum contacts are increasingly blurred by the internet, e-commerce, and advertising in the U.S. Even if you have not been sued, You should consult with experienced legal counsel to determine whether or not you may be subject to jurisdiction in the United States.
Even if think you might be subject to jurisdiction in the U.S., you should consult with a qualified U.S. attorney. There are many defenses available that may help you avoid a lawsuit in the United States.
The Lawsuit, the Trial, and Procedure
When a plaintiff sues a company in the United States, it begins by filing a “complaint” with the proper court laying out the facts and legal authority for its argument against the company, or defendant. In order for the lawsuit to proceed, the defendant company must be put on official notice of the pending litigation. This is called service of process. For non-U.S. companies, many U.S. and international laws govern the proper procedures necessary to properly serve process in order to protect the defendant.
Once the defendant has been served, it typically has 30 days in which to appear before the court to file its “answer” to the Plaintiff’s complaint. A non-U.S. company appears before the court through its attorney in the United States. Prior to filing its answer, a defendant has several tools and defenses that it may use to try to have the lawsuit dismissed. The U.S. legal system utilizes a method of communicating with the court known as “motion practice.” Requests (such as a request to dismiss a claim or a request to set a date for a hearing) are filed with the court as formal motions, in writing. If there is a dispute over a particular motion, the judge may call the attorneys for the parties into court for a hearing. Typically, many motions are filed over the course of a lawsuit.
Once the complaint and the answer have been filed, the lawsuit enters “discovery.” This is the point in the lawsuit where each party is allowed to obtain documents and evidence from the opposing party in order to prove its case or to learn about the opposing party’s strategy. Discovery can take the form of depositions (interviews taken under oath), written questions, or requests for the production of certain documents.
Discovery is unique in the U.S. in that discovery is extremely broad and far reaching and may entitle the plaintiff to massive amounts of information, even confidential information, that you may consider as being of little value or relevance to the lawsuit. Discovery has the power to obtain access to your computers and see your confidential emails and files. U.S. Courts also have the power to order discovery outside the United States even from companies that are not parties to a lawsuit through the service of a subpoena from the court. Discovery can be time consuming, exhaustive and very expensive.
Once the parties have gathered all necessary evidence, the lawsuit proceeds to trial. Lawsuits may, but need not, be heard by juries. A jury is a group of ordinary citizens called upon by the court to decide questions of fact in a lawsuit. They may decide which witnesses are telling the truth and which evidence is important in deciding the winner in a lawsuit. Juries also often decide the amount of money or other reward should be given to the prevailing party. There are many disadvantages to having a jury trial, however, and many parties to commercial disputes agree to let a single judge determine all important matters in the lawsuit.
If a party believes that it can win the lawsuit without having to go through a trial, it may file a “motion for summary judgment.” This is a special dispositive motion made where the facts of the lawsuit are not in dispute, and the only decision to be made is the interpretation of the law to the facts.
Once a case has been decided either through trial or summary judgment, the parties are responsible for the costs of the lawsuit. Unlike many other countries, the “American Rule” generally requires that each party, regardless of who wins, pays its own costs of litigation and attorneys’ fees. However, there are exceptions to this rule and in some cases the winner is entitled to costs and attorneys’ fees.
After trial or summary judgment, the losing party has a certain amount of time to appeal the case to a higher court. If the case is appealed, the appeals court will review the record and the arguments of both parties to determine if the initial decision should be upheld or reversed. If the decision is reversed, the case is often sent back down to the original court for a new trial, which starts much of this process all over again.
Judgments obtained in U.S. Courts can often be difficult to collect—depending on which nation of which the defendant is a resident, the laws and international rules on collecting judgment can range from nonexistent to relatively easy to collect. If you have a judgment from a U.S. court or are subject to a judgment, you should contact an attorney experienced in international law for guidance.
Dos and Don’ts When You are Sued
If you have received notice that you have been sued or are about to be sued, there are many things that your company needs to do in order to protect itself. Because of the complex nature of U.S. lawsuits, it is important that you consult with legal counsel at every step to receive the proper counsel and advice that you need to successfully defend your lawsuit. Here are some tips to help you when you are sued.
DO contact your insurance company. Your insurance company needs to know if there is a potential claim for which it may be responsible. Carefully study your insurance policies to see if the claim covered by your insurance company and for instructions from your carrier. Your insurance company may provide assistance in retaining legal counsel in the U.S. and locally, as well as paying for some or all of the costs of your defense. However, in many cases your insurance policy will not cover the subject of the dispute (such as a contract for services); in which case it will become necessary for your company to take full responsibility for the defense.
DO examine the facts of the lawsuit. Is it a dispute over a contract? Does it only tell one side of the story? Begin a file and keep all relevant information in that file. Does the contract require arbitration or litigation in a specific nation or jurisdiction? All of these facts are relevant to your successful defense of the lawsuit.
DO contact legal representation immediately. It is vitally important that you hire lawyers both locally and in the U.S. as soon as possible to ensure that you get the best possible defense. An experienced U.S. lawyer will be able to identify the strengths of your case and the best strategies for defending the lawsuit. Many of the best defenses may only be raised in the first few weeks after the commencement of the lawsuit.
When you meet with your attorney, have all relevant documents ready for the attorney to review, including the lawsuit papers themselves and all the documents in your case file. Be sure to be very candid with your U.S. counsel and to tell him everything. In the U.S. communications and conversations are protected by the attorney/client privilege—that is, everything you say to your lawyer you can count on being kept confidential and not able to be used against you in court.
DON’T destroy documents relevant to your case. In the U.S., strict rules govern the destruction of relevant documents. As a good rule of thumb, when you have received notice that you have been sued, or even if you receive notice that you might be sued, “Don’t create, and don’t destroy.” Make sure all employees preserve all emails and don’t delete them. Save all memos, notes, and correspondence. Put them in your case file for your attorney to review. And remember, the plaintiff will be able to read just about everything you say regarding the lawsuit, so it is vitally important that you do not say anything, if only inadvertently, that might be interpreted as detrimental to your case. Be very careful and avoid discussing the lawsuit with others, especially via email or in writing.
DON’T be impatient. Often, defendants become frustrated by the length and expense of a lawsuit in the U.S. Be patient. Understand that lawsuits can take years to resolve. Trust your attorney. You have hired him because of his or her experience and skill. Your attorney has strategies to provide you with the best possible defense and legal arguments. Sometimes, these may seem counter to what you think is best. But, listen to your counsel, and be careful to take his or her advice and to follow his instructions.
No lawsuit is fun or easy. But by following these tips, and working closely with your attorney, you can be as prepared as possible to successfully defend your lawsuit.
If you have any questions, the attorneys at Maucere Law Group LLC are experienced in representing non-U.S. companies in U.S. litigation and we would be happy to hear from you. firstname.lastname@example.org or +1 423.855.1755.
Remember, this is not legal advice. Always make sure you consult qualified legal counsel before making important decisions. No representation is made that the quality of representation by Maucere Law Group LLC is greater than any other legal representation.Read More
In these days of constant internet communication, many businesses are setting specific policies in an attempt to manage what their employees may say about the company online. But these policies are not as simple as they would seem.
If an employer prohibits employees from expressing complaints on social media, it may raise the concern that that employer is violating the employees’ rights to engage in concerted activities. In other words, the employer could be prohibiting the employee from taking the steps to engage in union activity.
At least, that’s the argument of the National Labor Relations Board (the government agency tasked with protecting employee and organized labor rights). When Dawnmarie Souza, an employee with American Medical Response in New Haven, Connecticut, had a disagreement with her supervisor, she shared her complaints on Facebook. Her Facebook friends, including several co-workers, expressed agreement and added their own complaints through the social networking site. The company fired her for violating its “Internet Policy” against making disparaging remarks about the company online.
This case will be heard before an administrative judge in January. From there, it is likely that it will be appealed to higher courts, and, whatever the outcome, it will set new policies on exactly how much control an employer can have over an employee online.Read More
In this economic environment, employers are frequently looking for ways to narrow down applicants and screen out potential problems based on clear and specific criteria. For many employers, one way of doing that is to review the applicants’ credit history. However, this method is under attack. According to the Wall Street Journal:
“Four states have passed laws in the past three years that limit the practice, and similar bills have been introduced in 20 other states and Congress. The issue has surfaced in the wake of the recession, which has left many unemployed workers with tattered credit.
“The underlying concern is that poor credit could become a barrier to landing a job. Employers contend credit checks help them evaluate candidates and protect against fraud.
“Another concern is the potential discriminatory impact on hiring. That prompted the Equal Employment Opportunity Commission to hold a hearing Wednesday to listen to testimony from advocates on both sides of the issue.
“Opponents of the practice cite studies showing that African-Americans and Latinos tend to have lower credit scores. They also dispute whether credit reports are an accurate way to measure an employee’s qualifications. An early 2000s study by Jerry Palmer, an Eastern Kentucky University psychology professor, showed that bad credit was a poor predictor of job performance.
When screening job applicants, it is important to be aware of your state’s specific restrictions, as well as federal laws. Many criteria that an employer may not think of as discriminatory may be looked at differently under the applicable law. Additionally, it is important to constantly review the criteria being used in order to ensure that it is relevant to the characteristics that you are seeking in an employee. The constantly changing legal landscape requires frequent reviews to ensure that hiring practices are appropriate under the law.
If you have any questions about your hiring practices or other potential employment discrimination issues, please contact Maucere Law Group LLC for guidance.Read More
For immediate release
Maucere Law Group is pleased to announce the addition of Melissa C. Reinders, Esq., as a litigation and healthcare law partner to its Chattanooga, Tennessee Offices. Ms. Reinders will focus her practice on healthcare regulation and administration, healthcare litigation, and employment issues. Prior to joining Maucere Law Group, Ms. Reinders served as the law clerk for the Hamilton County Chancery Court.
Ms. Reinders is an alum of the University of Tennessee School of Law, where she graduated summa cum laude, and served on the editorial board of the Law Review and the corporate law journal, Transactions. Prior to law school, Ms. Reinders worked in the health care administration field.
Scott Maucere, managing member of Maucere Law Group, feels that Ms. Reinders is an excellent choice for the firm. “She’s a great fit,” he said. “Ms. Reinders is an extremely talented lawyer and advocate. Her experience in complex litigation and in the court system is an ideal match with our firm’s focus. Businesses are increasingly concerned about employment, and healthcare is changing at its most fundamental levels–from the family doctor to the largest hospital corporation. These are the areas in which Ms. Reinders is expanding our practice reach.”
Melissa C. Reinders may be contacted at email@example.comRead More
A proposal to create an international district in the Buckhead neighborhood of Atlanta, where consulates, bi-national chambers of commerce, trade offices and multinational companies would be clustered, is headed to the next level.Read More
Today, the Hamilton County Herald newspaper ran a front page story on the niche legal practice of Maucere Law Group’s Managing Member, Scott Maucere. You can read the full story here: http://www.hamiltoncountyherald.com/Story.aspx?id=1143&date=3/12/2010Read More
Faced with an unemployment rate of 16% for 20- to 24-year-olds, a growing number of recent college and grad-school graduates are launching their own companies. But is this a good time for you to form a startup? Maybe, but now more than ever, you had better go in prepared. (more…)Read More
The Arab states of the Gulf region have agreed to launch a single currency modelled on the euro, hoping to blaze a trail towards a pan-Arab monetary union swelling to the ancient borders of the Ummayad Caliphate. http://www.telegraph.co.uk/finance/economics/6819136/Gulf-petro-powers-to-launch-currency-in-latest-threat-to-dollar-hegemony.htmlRead More
Welcome to our blog! Here, we’ll be posting articles, news, and other resources about international and US business law, dispute resolution and litigation developments, and issues affecting your global business. We welcome your comments and discussion. If you have a question or a topic you’d like to learn more about, let us know and we’ll address it.
And check back often, as the blog will be updated as regularly as we can manage.Read More
Maucere Law Group LLC is a law firm providing sophisticated business, litigation, and international law services in Chattanooga, Atlanta, throughout the Southeast and around the world. We offer quality, hands-on representation to businesses, entrepreneurs, and individuals at cost effective rates.Read More