Monthly Archive for February, 2011

United Kingdom Legal Reform May Soon Put An End To Libel Tourism

For all the injustices and seemingly endless unfairness that can permeate everyday life, it’s nice to know that the same life can sometimes eventually deal the everyman (or woman) a fair(er) hand.

Yep, that’s right folks – the United Kingdom may soon be putting an end to libel tourism; the awful and infuriating practice reserved only for the richest of the rich.  And I have to say that it’s about damn time.  That type of forum shopping is worst than how Tootsie Rolls taste.  Seriously, any candy that is purported to taste like chocolate should actually contain at least some chocolate inside of it.

Awful candy aside, libel tourism is a serious issue, especially for those of you who are like me and harbor a resounding hatred for all frivolous lawsuits.  The article I linked to does a pretty poor job of explaining the concept behind the practice to anyone whose last name isn’t immediately followed by Esq., so I’ll try to explain it sans the legalese.

Libel tourism is when a plaintiff attempts to sue a person or business entity (such as a magazine or newspaper) for libel in the United Kingdom in order to increase their chances of winning their lawsuit.  The reason that plaintiffs choose the UK courts to hear their libel lawsuits is because the UK’s libel laws are extremely plaintiff friendly.

Unlike in most countries, the UK’s defamation laws are very board.  Essentially all a plaintiff must do to win a libel (written defamation) or slander (oral defamation) lawsuit is prove that a comment said or article written by the defendant about the plaintiff would be likely to make the average person think worse of the plaintiff.

Now, while this may initially sound like a good standard to measure defamation, the problem is that, in practice, from a legal perspective this could theoretically encompass almost any negative statement.  For example, if a magazine writer writes that Kate Hudson looks dangerously skinny, anyone who reads that would probably think less of Hudson because the article insinuates she may have an eating disorder, and thus Hudson would be able to sue for libel in the UK and win.  Sounds crazy and impossible, right?  Well, it’s not.

To make matters worst, the UK’s defamation laws also presumes any negative statements made are false, meaning the burden of proof is on the defendant to show what was said or written about the plaintiff is true or a fair commentary.  This combined with the UK’s generous contingency fee agreements (plaintiffs pay no money to their lawyers unless they win), all of this creates the perfect storm for libel tourism.

By comparison, American defamation law for public figures as defined in New York Times v. Sullivan requires the plaintiff to prove that both the statement about the figure is false and that it was said or published maliciously.  This rule makes winning a defamation suit in America incredible expensive and difficult.  It also makes the UK the perfect place for celebrities and public figures the world over to flock to the country to sue anyone who pisses them off.

But, what you may be wondering now is how these people can sue a defendant if neither party actually lives in the UK.  Well, that’s the thing with suing people in a foreign country like the UK; as long as you can show you suffered harm there and the defendant was the cause of it, if the country allows it, you can sue under their law.  And the UK allows exactly that.

This is why libel tourism is so dangerous, because literally everyone and every press outlet can be liable to a wealthy person’s personal vendetta.  However, if the UK defamation reforms go through, this will all finally be a thing of the past.  The changes would essentially modernize the UK’s old defamation laws and jurisdictional rules to be more in line with other countries around the world.

This is a great thing because let’s face it, who other than rich celebrities and business people can afford to sue someone or some company in the UK every time they get pissed off?

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Top 5 Tips Real Estate Agents Should Know to Avoid Foreclosure and Short Sale Lawsuits

Real estate agents who take on listings for a short sale or foreclosure should remember several points to protect themselves against potential legal action.  Below are the top 5 tips:

  1. When taking on a short sale listing, the homeowner is known to be in financial distress. At this point, your primary responsibility is to the homeowner, even at the expense of your commission. To proceed with any other intention breaches your fiduciary responsibility, a phrase used again and again in lawsuits that basically amounts to a breach of trust.
  2. In taking a short sale listing, you will have obtained access to privileged financial information about the homeowner. Attempting to leverage this information for your own benefit leaves you vulnerable to fraud charges.
  3. Not closing a deal due to a lack of commission, then simply informing your client that the lender wouldn’t accept the offer leaves you open to a host of lawsuits for one reason: Lenders record all negotiating phone calls. Should your client investigate the matter, their attorney will almost certainly subpoena these recordings. Additionally, the attorney will likely subpoena your notes and the preliminary HUD-1 Statement, which will contain your commission.
  4. Filing “creative” paperwork with the title agent (who often might well be a friend) with the intent to close the deal and still land a commission is risky. When dealing with short sales, the paperwork should always be handled by an attorney.
  5. Many self-proclaimed “short-sale experts” have taken only a short course on the subject and may have never actually closed a short sale. Jumping into this arena shouldn’t be taken lightly—not being completely familiar with the process can leave the door open for clients to cry foul should the sale not go through, and ignorance is seldom a successful defense. Speak with experts, learn the finer points of short sales, then proceed with you best efforts to help the client. Above all else, if you’re unsure about the process, refer your client to an agent with the knowledge to properly conduct the sale.

Short sales are not like regular listings. Timing, pricing, the desperation of the client and the lender moving toward foreclosure all create many issues not usually dealt with in normal home sales. The best thing a real estate agent can do when dealing with a short sale is to get educated on the process; if you do not have experience with short sales, find an agent that does and work closely with them instead of tackling the sale solo, or turn the sale over to them altogether. Working with a real estate attorney can also help reduce liability, especially in situations where conflicts and moral dilemmas may already be present. These tips can help ward away many of the pitfalls from short sales.

Guest blog courtesy of Show Appeal Realty, an Arizona real estate brokerage selling Scottsdale Homes and helping homeowners with Phoenix short sales.

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Winning Over Job Interviewer Pro Tip: Don’t Be A Jerk

A friend of mine just had one of the worst job interviews imaginable, but it wasn’t because the interview sucked, it was because he did.  It’s funny sometimes how people can be so oblivious when it comes to seemingly straight-forward things like finding work or even social situations, because that’s what job interviews essentially are, a way to sidle up to a person and convince them to like you enough to hire you.

But the best part of this all was that as my friend was recounting his interview to me, he had no idea how completely out of line he was coming off during the whole debacle and was instead outraged at the interviewer.  His zany antics smacked of Diana Abdala.  It was a level of uncouth obliviousness that only a “trust fund baby” could ever think was proper.

But the funny thing is that my friend isn’t rich himself.  He didn’t grow up with a silver spoon in his mouth.  He just thought what he was doing was okay.  What his interview showed me was that it doesn’t matter what your background is, when it comes to job interview and socializing in general, some people can just be downright awkward and/or rude just because they don’t know better.

Oh, and for those of you who don’t remember Diana Abdala, I’m jealous because I wished I could put her snobbery and entitled self out of my mind, as well.  This week marks the 5th year anniversary of when she first lit up the blogosphere back in February 2006.  Abdala had accepted a job with a small law firm, but when her employer had to cut her pay in order to hire an additional attorney, Abdala balked back like a spoiled child.  Certainly if I was in her position I’d be angry with my new boss, too; however unlike her, I wouldn’t have thrown a temper tantrum like she did.

Instead of politely declining the position because the lower pay, Abdala expounds on her need be paid enough to support her glamorous lifestyle, insults her would-be boss for his inadequacy as an attorney, and then caps the whole thing off with “bla bla bla” after he responds back.  Abdala is the epitome of every douchebag rich kid I went to law school with, which believe me, are in plentiful supply when you go to a tier one law school.  Not only does Abdala’s action show her immaturity, it also shows her inability to relate with people, a must for any good lawyer.

Anyway, at this point you might be wondering what my friend did that was so bad in his interview.  Well, in this case I don’t think it’s all that important to recount since to most people it should be obvious not to pull the kind of stunts he was doing.  Let’s just say it involved a lot of tardiness, a lot of sweat, and a lot of feet-on-table casualness.

But thankfully what I will convey to you is my top 5 tips on proper job interviewing etiquette.  You may be thinking where I get off telling you how to interview for a job.  You’d be right to question my credentials.  However what I can tell you is that these tips have always helped me land a job in a very short time and regardless should be tenets adhered to by everyone who wants to come off well in these sorts of social situations.

1)      Mimic your interviewer

This may sound kind of funny, but it’s the most important tip I can give anyone who is job hunting.  People subconsciously become more amenable to those who react and move in the same ways as they do, which in turns makes you more likely to be hired.  Now when I say mimic, I don’t mean copy everything your interviewer does exactly, because that’s just creepy.  What I mean is that you should adopt their mannerisms and adapt to their language use so that you come off similar to how they are, because after all we are naturally attracted to those that we think are like us.  Doing something as simple as crossing your legs in the same way as your interviewer or using the same terms they’re using can go a long way in making your interviewer more comfortable with you.

2)      Firm handshake

I’ll admit that this is an old one, but it’s still a good one.  A firm handshake subtly conveys confidence, a plus for any interview.  Now remember, don’t Vulcan death grip your interviewer, it just has to be firm enough so that it leaves a good impression.  Oh, and no one likes sweaty hands.

3)      Make good eye contact

This is another oldie, but a goody none the less.  Like with the firm handshake, eye contact also conveys confidence.  It also provides the more immediate bonus of letting your interviewer know you’re actually paying attention.  Again don’t be too creepy by staring relentlessly, just do it enough so that you seem confidently normal.

4)      Don’t fidget

Yeah I know this one can be hard especially during the nerve-racking process that is job interviewing, but please try to do this one.  Excessive moving, playing with your hands or hair, etc. can be a major turn off to potential employers.  Keep an open posture and feel free to talk with your hands if you need to, just don’t over do it.

5)      Smile

Who doesn’t like happy, pleasant and enthusiastic people?  Smiling conveys exactly that along with (once again) confidence.  Smile as soon as you first meet your interviewer and shake his or her hand.  Keep a welcoming exterior throughout the interview and be sure to end it on another smile.

Hopefully these tips will help you land the job you’ve been eyeing.

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Make Your Own Coca-Cola And Enjoy Lawsuits

The great taste of Coca-Cola can now be yours . . . at home!

Yes, that’s right this month will forever mark the historic event when the Coca-Cola recipe was finally release online and millions the world over first began making and enjoying the iconic soft drink in the comfort of their own home, free from the manufacturer’s tyrannical prices.  That, or people will just keep buying the drink from the store because you know, it’s cheaper and no one wants to figure out how to extract coca fluid from a coca leaf.

I think that the best part of this whole story is that for consumers, it actually costs more to make the drink themselves than to buy it, not to mention it’s a whole lot more difficult and time consuming to make it.  Which is why it’s so funny that Coca-Cola has so vehemently denied that “This American Life” (the Ira Glass radio show that first broke the story) has the correct recipe for their sugary soda.  I mean, who the hell would want to make Coca-Cola after the initial novelty of making it yourself wears off?  It’s something you do once and never again.  The only consequence to all of this is that if you happen to actually try to make Coca-Cola, you’ll probably never want to drink it again after seeing how much 30 plus grams of sugar actually look like.

However, the other more likely reason for Coca-Cola’s adamant response is that they are probably more afraid of other companies co-opting the formula, and bottling and selling a bastardized version of the classic soda themselves, thereby cutting into the corporate cola giant’s profits.  In which case, if I were Coca-Cola, I would also probably be fuming mad at Ira Glass and company, as well.  You don’t mess with a person’s meal ticket, and if you do, expect to be fought tooth and nail all the way.

Anyway, in this global market of ours having a commodity that can be exclusive called your own is a valuable asset to possess.  Exclusivity means that if anyone wants what you have to offer, they’ll have to come to you to get it and that means huge profits for you.

The best example of this is the pharmaceutical industry where continued dominion over drug innovations can literally make or break a company.  The cost of researching and creating the drug on top of getting FDA approval is incredibly expensive, which is why drug companies fight so hard to hold onto their patents and sue anyone who they suspect are stealing the fruits of their labor for themselves.

But the problem of corporate espionage isn’t exclusive to the drug industry.  Competition is on a global scale these days and everyone from a small business owner in Topeka, KS to Coca-Cola can be susceptible to infringement of their intellectual property.

However, patent infringement is a tricky area of law, especially when it’s at an international level.  In the case of Coca-Cola, they probably don’t have a valid lawsuit for infringement against “This American Life” since the show isn’t profiting from exposing Coca-Cola’s formula insofar as they aren’t manufacturing and selling a soda that infringes on Coca-Cola’s trademark (since I don’t think any company has patented their cola formula, if someone knows please tell me).

But the company could claim there were financial harms when the show released their trade secret, the Coca-Cola formula.  However, by doing so Coca-Cola would be implicitly admitting the show found the correct formula.  Or Coca-Cola could argue that the show found a formula that people believe is correct, but isn’t, but that the false belief has cause the company to lose money.

Ultimately though, Coca-Cola would probably not want to sue at all because the subsequent press coverage would give the supposed formula more fame and trouble than if they just had just not spoken up to begin with.  See the problem now?  When you sue for infringement, you can sometimes end up hurting yourself more.

Law can be a hell of a drug.

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Birthright Citizenship Facts and Myths

Arizona is at it again.  The Copper State is making headlines yet another time with another controversial immigration issue of Grand Canyon-like proportions.  This time it’s major- the state’s legislatures are now challenging the issue of birthright citizenship.

Birthright citizenship is the idea that a child born in the United States is automatically granted U.S. citizenship, regardless of the citizenship status of the parents.  Historically, birthright citizenship has been guaranteed under the 14th Amendment to the Constitution at Section 1.

Now, over in Arizona new legislation has been proposed targeting the validity of birthright citizenship.  Arizona legislators John Kavanaugh and Russell Pearce have introduced a bill that would limit birthright citizenship only to those children born to at least one U.S. citizen or legal immigrant.  They have also proposed a compact that would require separate birth certificates for children born to illegal immigrant parents.  A vote on the bill is scheduled for sometime mid-February.

As expected, this new legislation opens up a whole ‘nother immigration issue that is sure to be debated all year.  Before you delve headlong into the debate, here are some immigration and birthright citizenship myths to consider for your information:

Myth: “Anchor babies” allow their parents to automatically become U.S. Citizens.

False.  Anchor baby is the (generally derogatory) term used to describe children of illegal immigrants who are born in the U.S. and therefore eligible for birthright citizenship.  The idea is that if a couple has a baby in the U.S., the child allows the family to “anchor” itself in the country through petitioning, etc.

But the fact is having an “anchor baby” will not prevent deportation of the parents, nor will it guarantee their citizenship.  The citizen child would not be able to file for their parents’ petition until they reach age 21.  Even then, the citizen must be at least 125% over the poverty threshold to apply, and their parents may already be facing a ban on returning to the U.S. due to their previous illegal status.

Myth: Birthright citizenship began in the U.S. as a way to grant citizenship to freed slaves

Part true, part false- yes, a closer look at the 14th Amendment may suggest that the citizenship language was intended to apply only to freed slaves and not the children of immigrants.  In fact, this is probably the hottest sub-topic in the birthright citizenship debate.  On the other hand, our trickily-worded statement above is partially false because birthright citizenship did not begin in the U.S.

The concept of birthright citizenship has been around probably for as long as there have been nations.  Birthright citizenship comes in two flavors: jus sanguinis (by blood) and jus soli (by place).  The first grants the birthright only if one or both of the parents are citizens of the country.  Switzerland and Germany are examples of countries that currently exercise jus sanguinis.

The second type, jus soli, grants citizenship based on where the child is born, regardless of the parent’s status.  This is the kind that America exercises.  To me, there is a basic reason why America chose to institute jus soli birthright citizenship rather than jus sanguinis.  From the beginning America was built on immigrant communities, and how could the first waves of Americans obtain citizenship if their parents were not citizens?  But many feel that the focus on geography is no longer applicable; hence, the current reform proposes a shift from jus soli citizenship to jus sanguinis.

Myth: Arizona has the highest percentage of illegal immigrants in the country

False- actually, Nevada has the highest proportion of illegal immigrants.  In 2010, Nevada had a percentage of 8.7%, while Arizona’s was 7.9%.  So why aren’t we hearing more about Nevada on the immigration front?  Beats me.  I suspect it’s because Nevada’s economy may be faring better than Arizona’s due to extra revenue from all the Pacquiao fights.  And Nevada might not be as dependent on illegal immigrant labor, at least not as openly, that is.

Myth: Changing the Constitution is a simple process

Probably false- It should be easy to amend an amendment, right?  I doubt it.  The 14th Amendment has become firmly rooted in our judicial system.  I’m sure that this present constitutional challenge will be met from all angles with much, much resistance.  Birthright citizenship will be defended tooth and nail if it reaches the Supreme Court (which it may due to the issue of pre-emption- citizenship is a federal issue).

And another thing- the idea of having two separate birth certificates could be very difficult to actually implement.  It would result in additional administrative costs, and would require everyone thereafter to prove that they are a citizen.  Not an easy task.

Conclusion

Personally speaking, one problem I do see with the argument against birthright citizenship is the issue of implementation.  So let’s say the movement to change the Constitution is successful.  Then what happens?  Children born to non-citizens will not be U.S. citizens.  Then what will their citizenship status be?  Will they be illegal aliens as well?  Effectively speaking, they will not be citizens of any country at all, unless they are citizens of another country based on jus sanguinis requirements.  And then what?  Will our country the institute a mass deportation of infants?

At any rate, Arizona needs to be very careful and thoughtful here.  It seems like with every move they make, other states follow suit.  The state is a literal trendsetter when it comes to immigration policies- at least 14 states are already contemplating similar birthright citizenship laws.  They may be thinking, hey, if Arizona is doing it, we can “jus” do it, too.

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