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BILBO BAGGINS V. THORIN OAKENSHIELD, ET. AL.: IS THE HOBBIT’S CONTRACT ENFORCEABLE?
December 9th, 2012
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?
Pictured: 300 billable hours
When I say enforceable, I mean that a court of law or equity will find that the terms of the agreement are sufficient to force the parties to abide by their obligations. Or would the terms of the contract itself be so onerous on poor Mr. Bilbo that, halfway through the story, in between goblin kings and nasty Gollum and giant spiders and wargs, he decides that he has had enough, and he wants out. Can he go to court and declare the whole thing off?
So here is likely the only legal analysis of Bilbo’s contract you will ever have the pleasure (or pain) to read. I’m probably ruining the fun of the story in the process. So I guess when I say holiday fun, I mean fun . . . for lawyers. But bear with me, because it certainly is fascinating (again, for me).
Note: Minor plot-related spoilers ahead. This is about the book’s contract, not the contract adapted in the film, which, according to promotional photographs, looks absolutely breathtaking.
Keep in mind that while I practice international law, Middle-earth most certainly falls outside of my area of experience. So I will stay within the sphere of my practice, common law jurisdictions, in particular the US common law of contracts. And since this is all for fun, I won’t bore you with in-depth citations, and don’t expect any of this to be actually legally binding (i.e. you should not use this as legal advice to get out of your own dragon burgling agreements).
In The Hobbit, 13 dwarves, led by the mighty Thorin Oakenshield and Gandalf the Wizard show up unexpectedly on Bilbo Baggins’ doorstep in the Shire one fateful Wednesday at tea-time. They need a co-conspirator with whom to share an adventure. Smaug the Dragon has seized the dwarves’ ancestral home under the Lonely Mountain, along with the fabled Arkenstone (to which Thorin Oakenshield is heir) and a great mound of gold and jewels. It seems that a 14th member is needed for the Company to avoid bad luck, and they need someone able to sneak into the mountain and steal the treasure out from under Smaug. Enter Bilbo. Gandalf has (perhaps exaggerating) touted Bilbo’s burgling expertise, and Thorin has come to enlist the hapless hobbit in their little scheme.
Bilbo is reluctant to join them, but when presented with a letter spelling out the terms of his engagement, he hurries to catch up.
Here’s the text of the engagement letter/contract from Chapter 2:
Thorin and Company to Burglar Bilbo greeting! For your hospitality our sincerest thanks and for your offer of professional assistance our grateful acceptance. Terms: cash on delivery, up to and not exceeding one-fourteenth of total profits (if any); all traveling expenses guaranteed in any event; funeral expenses to be defrayed by us or our representative, if occasion arises and the matter is not otherwise arranged for . . .
A contract is a legally binding promise between two or more parties. In order for the contract to be valid, there must be mutual intent, there must be an offer and acceptance, and there must be sufficient consideration.
Here, there is an offer and acceptance. Bilbo declared bravely (or foolishly) the night before that he would go and be their burglar, and here in the text of the agreement they accepted. Bilbo, by joining the Company, manifests the mutual intent to participate in the employment. There’s also sufficient consideration. It’s a contingency contract, promising a fourteenth share of the after-expense profits in exchange for Bilbo’s performance of obligations COD.
Just what Bilbo’s obligations are isn’t explicit in the Contract, but it references Bilbo’s offer. In the book when he makes the offer at the end of Chapter 1, he agrees to enter the Lonely Mountain by the secret entrance and obtain treasure on behalf of the company. There might be some ambiguity here, which would be construed in favor of Bilbo, but it would probably not void the entire contract. The court would likely apply reasonable implied terms of construction according to their intent.
So far so good.
However, the purpose of the contract must also be lawful. In a contract, if the purpose of the agreement is to achieve an illegal end, the contract will be unenforceable. For example, a contract for one person to kill another person is unenforceable because it requires an illegal act and goes against the public policy that we don’t want people murdering each other.
In The Hobbit, Bilbo’s job is of course to be a “burglar.” Burglary is a crime under the common law in the US, English common law, and most other countries. So then the question becomes: is burglary the kind of illegal activity that would be ruled unenforceable in a court?
Burglary is defined in the common law as the unlawful breaking and entering of one’s dwelling at night for the purpose of committing a felony.
In the book, Bilbo’s job is to sneak into Smaug’s Lair at night and steal the gold and treasure out from under the dragon. In almost any state the value of the treasures stolen would constitute a felony. Therefore, you can easily make the case that Bilbo was burgling, and that he was in fact hired for an illegal purpose.
But the dwarves would likely argue that there in fact is no illegal purpose. Burglary in this case, they might argue, is merely a term of convenience, and no actual illegal activity was ever contemplated. Thorin and the other dwarves clearly believed they had a legal right to not only the Arkenstone but to the entire treasure amassed by Smaug. Smaug obtained the treasure through illegal means himself, and even possessed the dwelling only through his trespass—indeed Thorin had the key to the place. In this case it wasn’t really burglary at all. It was the self-help repossession of the treasure and property of the dwarves. Bilbo wasn’t really hired to be a thief, but a sort of Middle-earth repo man.
So is self-help repossession an illegal activity prohibited by the court? It probably depends on the jurisdiction. In the US, the uniform residential landlord and tenant act generally prohibits self-help eviction, even if the tenant isn’t lawfully possessing the property. Self-help repossession of treasure may be more tolerated, but generally you can’t take back property if it would “breach the peace” (i.e. breaking into a building to take back even your stuff is frowned on by the law—I’m talking to you, O.J. Simpson).
The dwarves would have some defenses, but in my opinion Bilbo would have a good case that the contract should be declared unenforceable because it is for an illegal purpose.
Of course, there are a lot of other factors which may affect the outcome. Exactly where is this contract going to be heard? It was signed in the Shire, but it was to be performed at the Lonely Mountain, which is under dwarf jurisdiction (or so they say) but it also may fall under the jurisdiction of Dale, which is presumably the closest civilization with working courts or judges (The Shire had constables and provincial officials, but there would be a real question of whether they could exercise jurisdiction purely because the plaintiff resides there). A better tactic may be to submit to the jurisdiction of Rivendell, where wisdom and neutrality would be easier to find.
Keep in mind that this is a contract for employment. As such, various labor and employment laws will apply. If Thorin and Co. prevailed in enforcing the contract, they would be able to recover for damages, but not specific performance. Contracts for personal service, such as employment contracts, cannot be remedied by specific performance because doing so would violate the 13th Amendment, which prohibits involuntary servitude (slavery).
There you go. Bilbo went through all that for nothing. If he had hired me as his lawyer, he would have stayed home comfortably, and not had to go through any more adventures. Neither would Frodo, I suppose. Which would mean that the One Ring wouldn’t have been destroyed.
There go the lawyers again, ruining everybody’s good time.
You can email Scott Maucere at srm@maucerelawgroup.com or follow him on twitter @smaucere
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Biggest Doesn’t Mean Best: The Problem with Biglaw
May 29th, 2012
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:
http://dealbook.nytimes.com/2012/05/28/dewey-leboeuf-files-for-bankruptcy/.
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.
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International Legal Etymology
February 23rd, 2012
Legal terms often have different meanings, depending on where you live.
Read the full text here: http://www.mentalfloss.com/blogs/archives/117999#ixzz1nGh0mzGn
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Attorney Maucere Admitted to Practice before Courts of International Trade, Federal Appeals
April 18th, 2011
Washington, DC
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.”
Information regarding the CIT and the CAFC can be found at http://www.cit.uscourts.gov/ and http://www.cafc.uscourts.gov/.
To find out how Mr. Maucere can help you with your international trade matters, please contact him at srm@maucerelawgroup.com or at +1 423.855.1755.
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Wages, Unemployment, and the Gender Gaps
April 14th, 2011
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.
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Health Care Reform Constitutionality to be heard in June
April 5th, 2011
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.
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What’s the difference between these two T.V.s?
March 25th, 2011
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.
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Interesting thread for businesses who deal directly with customers
March 23rd, 2011
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.
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Ingenious . . . or just plain rude?
March 22nd, 2011
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.
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Congressional Small Business Committee to host forum in at UTC
March 21st, 2011
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.
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Can a doctor trick a patient . . . ethically?
March 21st, 2011
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.
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Comparison Shopping for Healthcare
March 16th, 2011
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.
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Amazon Announces Commitment to Build Facilities in Chattanooga Region
January 4th, 2011
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.
http://www.chattanoogachamber.com/newsandvideo/101220_Amazon.asp
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I’ve Just Been Sued in the U.S. Now What Do I Do?
November 16th, 2010
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. srm@maucerelawgroup.com 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.
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Does Your Company Have an Employee Internet Policy?
November 10th, 2010
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.
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Are Credit Checks Unfair Employment Discrimination?
October 26th, 2010
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.
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Maucere Law Group LLC Welcomes Melissa C. Reinders, Esq. to the Firm
August 25th, 2010
Chattanooga, TN
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 mcr@maucerelawgroup.com
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Plans Advance for International District in Buckhead
July 2nd, 2010
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.
http://www.globalsavannah.com/article/24047/
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Attorney Profile of Scott Maucere in Hamilton County Herald
March 12th, 2010
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=3/12/2010
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Hiring Down, but Entrepreneurship is Up: Is This a Good Time for a Startup?
December 22nd, 2009
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.
I see this a lot. Many young professionals are confused; they have spent thousands, sometimes hundreds of thousands of dollars getting the education they need to land that right job so they can get on with their lives. But the economy has thrown them a curve. However, America is built on entrepreneurship, and what the recession did by sending young business men and women scrambling for work is ultimately what will bring the world back to prosperity.
See, a lot of young professionals are short on job prospects, but they are long on solid business education, energy, enthusiasm, and youth. And they have a ton of really good ideas rolling around in their otherwise unemployed brains. Many of the young professionals I see are too pumped about business and making money to simply wait around for the Investment Banks to start hiring again. They need to do something beyond cold calling that firm yet again in hopes that someone got fired. And frankly, most are probably too naive to realize the thousand pitfalls between them and entrepreneurial success. But that’s what successful business needs–the willingness to take risks, the time and brainpower to commit whole-heartedly to a single concept, and the ability (consciously or blindly) to put aside the naysayers and the numbers that tell us it just can’t be done. That’s why the young professional with the proper background is one of the best candidates for helming a startup.
Maybe you’re fresh out of B-school, but you cannot find a job that will pay your bills. Are you a candidate to start a business? Perhaps. But you need to keep a few things in mind:
1. You Need an Idea. Bill Gates (another young professional starting up a company) didn’t just open a store and start selling whatever fell into the shipping dock. He had a product in mind. You need an idea, that tiny spark, that ‘aha’ moment, when an idea hits you that no one has done before, or at least not done well. But the spark isn’t good enough either. You need to blow on that spark, to kindle it into a flame. The idea has to become rational, based in sound business theory and thinking. You need to toy around with the idea, kick it off of some trusted (preferably older) business minds (be careful here just who you share your ideas with. If your idea is really something, don’t think for a moment an unscrupulous individual would not try to exploit you for it). Think about it objectively. Is there a market for it? Probably the number one reason new businesses fail is not because they were run poorly but because there just wasn’t enough of a market to consistently create demand and turn a profit (see no. 2). Is your idea feasible to create or produce? Will you enjoy doing it for the rest of your life? Never, ever, jump into a startup without having thought out these things thoroughly.
.2 Do your Research. A bright idea is just an idea if you don’t know if it will work. I can’t emphasize this enough–research thoroughly, then do it again. You need to know exactly how many widgets you can expect to sell, at what price, at what margin, and at what rate. You need to know who the other widget makers are, how they go about their business, and what works for them. You need to know if your town is large enough to need a full time widget manufacturer. You need to know what it will take to start the company up in dollars for the first year, and what the lag time will be between your business launch date and the date that the income is rolling in steadily (in the business of legal practice, for example, that lag time is very long, sometimes up to three years before a new firm begins to see a revenue stream). Will people want your idea if you paint it purple? Research cannot be overlooked.
3. Plan Plan Plan. This is the first actual step you take towards seeing your business realized. I know you know you need a business plan, yet so many people, especially young entrepreneurs, figure that they can just “wing it,” and adjust accordingly. But this is the point where you take your great idea and apply your research in order to make the idea conform to create value and profit. Run the numbers as accurately as you can. Look to as many places for comparables, then compare and contrast them with your own situation. You need a start up list of bare essentials, a six month goal for staying afloat, a plan for a year, a plan for three years. The plan needs to be clear and precise. It needs to reflect your own vision, and yet be written to persuade others (the bank, venture capital, your rich uncle) that your idea is not only interesting, but profitable. This needs to be on paper. Often you will find businesses that fail with a business plan. The number is far smaller of the businesses that succeed without one, and I would venture to say that it’s close to zero. B-school should teach you everything you need to know about planning to achieve profitability. If you aren’t a grad with a business degree, consider taking classes until you understand the ins and outs of running a business, financial and accounting terminology, and industry strategies and valuation formulas.
4. Get as much Support as You Can. You cannnot succeed in business on your own. It’s as simple as that. Business, by definition, requires the interaction of two or more individuals at some level. From day one, you need to assemble your team that will stand behind you and help you achieve your vision. First, you need personal support. Your spouse, your parents and family members, your closest friends; all these people need to be behind you before you can win. You need financial support. Cultivate relationships with those who might be able to make investments in your vision. Get to know your banker. Especially in this credit climate, oftentimes the only way to get bank financing is to have a personal relationship with those making the loan decisions. You need your business circle, which consists of your employees, partners, managers, and contractors. You need the support of trusted advisors, including an accountant and a business attorney dedicated to your vision. Your attorney can provide invaluable assistance in choice of entity formation, taxation issues, raising capital, and overcoming any regulatory hurdles you might face. Finally, you need the support of your customers. There is no greater value than generating and maintaining good business relationships with your customers. They provide the support of the company itself; they provide the revenues every month. Begin strategies to develop a reliable customer base.
5. Begin Decisively. If, and only if, you make it through the above steps and you are still convinced that your company can turn a profit within acceptable deadlines, you must launch your venture. It will likely come after much thoughtful consideration, and months of careful planning. Once however, you become convinced that it is worth doing, you must plunge in decisively. The water will almost certainly be icy cold, but it is especially so in a recession. This is when you must be able to ignore all the reasons why you shouldn’t launch your startup, and just do it. If you have the money set aside and budgeted out, do not be afraid to spend it. Set up your operations as quickly as possible to generate revenues as quickly as possible. Swim ahead confidently and do not look outside your lane at the obstacles around you. If you do not keep your mind focused squarely on where you want to be in five or ten years, you will not succeed. A startup begins with careful and tedious consideration. But when all consideration is finished, you must act, and once you act, you cannot stop.
Perhaps you are that person who is ready to launch their own startup in this economy. It will not be easy. But if you carefully map out your goals and ideas, rely on your objective business plan and advisors, and move forward swiftly towards profitability and stability, you can and will succeed. And all recessions come to an end. If you can survive in this economy, just think of how you’ll thrive in the next.
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Arab states to launch competitor to U.S. Dollar
December 16th, 2009
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.html
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Welcome to the International Business Law Blog!
November 11th, 2009
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.
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Maucere Law Group LLC
November 1st, 2009
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.
Our clients choose us for our innovative approaches to business and the law. We focus exclusively on the issues that matter to the 21st century business. Whether we’re working to expand your company overseas, drafting that once-in-a-lifetime contract, or defending your reputation and assets in the courtroom, we are able to help you realize your goals and keep you profitable.
Our smaller size and approach means that our business attorneys can provide an unparalleled level of service, and at a price where you can afford that level of attention. The result is an innovative, modern practice conceived with your business in mind.
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