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Utah Creates First Ever White Collar Criminal Registry

Utah has created the first ever registry for white-collar criminals. Similar to a sex-offender registry, the Utah White Collar Crime Offender Registry primarily targets any offender convicted of fraud. With a whopping $1 billion of fraud-victim loss in 2010, apparently the citizens of Utah are particularly more vulnerable to affinity fraud due to Utah’s high volume of religious and ethnic communities.

What’s affinity fraud, you ask? Perpetrators of affinity fraud pose as members of religious or ethnic communities, build a trusting relationship, and then exploit that relationship to essentially run a Ponzi scheme against the unsuspecting members.  Think Bernie Madoff.

Despite the fact that conviction records are public, the database, according to Utah Attorney General Sean Reyes, will provide consumer protection in a user-friendly fashion.

Sex Offender Registries Create Stigma

Sex-offender registries are modernized scarlet letters that put the same stigma on every registrant, regardless of what they did. It’s one of the biggest arguments against the use of sex-offender registries.  While some states have taken steps to remedy the problem by creating different levels of sex-offense White Collar Crimecrimes, it still produces a stigma on the offender—usually as a pedophile even if they’ve never touched a child.  Did you know in some states you can be forced to register as a sex offender for being caught peeing in public?  Or how about a teenager exposing himself in public as a prank?

Many even argue that sex-offender registries do little to actually deter sex crimes. Whether you agree with public shaming or not, it can prove difficult for registrants to find a place to live and find sustainable jobs, all the while isolating offenders from the rest of the world.

White-Collar Registries Are Not the Same

One of the biggest differences between the two is that sex-offenders are required to list their address while the white-collar offenders are not. This definitely helps protect the offenders from any harassment issues that sex-offenders sometimes face.

Additionally, Utah’s white-collar crime registry only requires registration for the following 2nd degree felony convictions:

  • Securities fraud,
  • Theft by deception,
  • Unlawful dealing of property by fiduciary,
  • Fraudulent insurance,
  • Mortgage fraud,
  • Communications fraud, and
  • Money laundering.

Offenders are required to maintain on the registry for a period of 10 years for their 1st offense and increases with each offense thereafter.  The catch here, different than a sex-offender registry, is that an offender is not required to register if they’ve complied with all court orders at the time of sentencing, paid all court-ordered restitution to victims in full, and have not been convicted of any other registerable offense.  That’s definitely a component sex-offender registrants don’t have.

Here’s the thing, though. An offender that gets convicted of defrauding his insurance company for dismantling his motorcycle, hiding the parts, and claiming they had been stolen in order to claim insurance money gets put on the registry just the same as an insurance agent who cheated 700 members of the Church of Jesus Christ of Latter-day Saints out of $72 million.  An offender with 1 victim gets the same treatment as an offender with 700.  Sounds like it’s creating the same problems, right?

Absent not having the registry all together, there doesn’t seem to be an alternative to get around negative impacts the registry may have. Creating different “levels” of offenses won’t really change the issue because, at the end of the day, it doesn’t really matter when it comes to crime involving the integrity of a person’s character.  Dishonesty is at the core of the crime of fraud—the stigma is already there and anyone on it would likely be scrutinized regardless of any class level.

Despite the Drawbacks, White-Collar Registries Can Be Beneficial

Arguably, sex-offender registries don’t do much for the public other than making them aware of the offender. Don’t get me wrong, knowing who is a sex offender is a good thing to know, but I don’t really see it preventing future sex crimes. On the other hand, white-collar crime registry could actually help prevent fraudulent behavior.

Both types of registries list what the offender was convicted of, but you will see a detailed, albeit brief, description of what the white-collar offender did that got them convicted. That could come in handy, especially for future employers looking to hire.

While a sex offender registry might state:

Lascivious acts with a minor.

The white-collar crime registry would state:

As part of job duties, prepared deposit slip for Brinks delivery on last day of work. Actual deposit on arrival at bank was short $43,900 in cash.

See the difference? It’s subtle, and arguable not significant, but what does the first one even mean?  How old was the offender compared to the victim at the time?  Was it an 18-year old boy with a 16-year old girlfriend or was the offender 30 and the victim 16?  Now, not all descriptions are so eluding, but, even so, the white-collar crime registry gives a bit insight into how the offender actually defrauded their victim. This allows an individual, or business, to make an informed decision about whether or not to do business with the offender.

Protecting Your Real Estate Sale From Eviction Lawsuits

A couple from Idaho is faced with the difficult task of evicting a squatter that rented their home from someone posing as the landlord.

Brian and Renae Prindle moved out of their Canyon County home at the end of 2015 in order to expedite its renovation and sale. Little did they know that a woman named Debbra Smith signed a lease and paid a man who had keys to their home. Smith pays $1,550 to rent the home, although it is unclear whether she is current on her rent. The Prindles contacted local authorities who consider the case a civil matter. They have now filed a civil lawsuit to evict her. The Prindles are concerned the eviction will derail their chances of selling their home.

Is the Tenant’s Lease Valid?

Smith claims she signed a valid lease with a man who claimed to be the landlord of the Prindles’ home. It’s unclear whether she can provide a copy of the lease. Regardless, whether she can prove she signed a lease with the fake landlord is immaterial. A residential lease is a legally binding contract between a landlord and a tenant which affords the tenant the right to exclusive use and enjoyment of the residential property in exchange for money paid to the landlord. If a lease is signed between a tenant and a man posing as a landlord that has no legal right to the property itself, he does not have the right to rent the residential property. In that regard, the lease between Smith and the purported landlord is completely invalid.

What If the Tenant Pays Rent?

If Smith pays rent to the Prindles directly, does that change the relationship between Smith and the Prindles? Prindle House

In most states, the answer is yes, but only if the Prindles accept payment. By accepting rent from a tenant, even one who is not in the lease, the transaction creates a landlord-tenant relationship. The tenant has the right to exclusive use and enjoyment of the residential property, and the landlord is entitled to monthly rent. The transaction creates a month-to-month lease. It also becomes more difficult to evict the tenant.

Does the Tenant Have a Legal Right to Remain in the House?

A bona fide purchaser, or BFP for short, is a legal term used primarily when referencing real and personal property. It refers to the innocent party who purchases property for fair value without notice of any other party’s claim to the property. Because the bona fide purchaser is innocent and had no notice of another party’s superior rights, he has the right to retain the property or enforce obligations against the person who may have superior rights.

For example, let’s say Derek steals your bike then sells it to Joe. You later find out Joe is in possession of your stolen bike. If Joe paid fair value for the bike and can demonstrate he thought Derek was the owner of the bike prior to purchase, Joe would be considered a bona fide purchaser and have the legal right to the bike. Your only legal recourse would be against Derek, but you would have no legal right to your bike.

In this case, the tenant could not claim she was a bona fide purchaser. The tenant did not purchase the home, only rented it. Even if she did buy the home for fair value, she still could not claim she was a bona fide purchaser because a title report would show that the true owners of the property were the Prindles. Therefore, she would be “on notice” that someone else was the legal owner of the property.

While Smith continues to reside in the home, she’s considered a squatter. A squatter is a term for a person who occupies a place that legally belongs to someone else when the owner hasn’t given permission for the occupation.

Will A Sales Contract Prevail?

Various disclosures are required in any home purchase contract. Most states require sellers to disclose whether any pending litigation exists on the property.

While the sellers understandably wouldn’t have known of the squatter until visiting the house, they would have to disclose to any potential buyer that there is litigation pending which could stall any potential sales contract. A savvy buyer’s agent would put a clause in a sales contract which states that the home purchase contract is subject to a successful eviction of the squatter, and would also include a definitive timeline.

San Francisco Now Leading Country in Paid Family Leave

In a unanimous vote, the San Francisco Board of Supervisors passed a law mandating up to 6 weeks of fully paid family leave for new parents. Not only does this new legislation provide much needed support for mothers, but it applies to fathers and, as the icing on the cake, same-sex couples as well!  I wouldn’t really call it progressive, as U.S. policy on paid family leave is pretty much non-existent compared to other countries around the world, but it’s definitely an advanced step in the right direction for the U.S.

The State of California currently has a Paid Family Leave Program that pays up to 55% of an employee’s salary for up to 6 weeks, but on the heels of the Board’s legislation, Governor Jerry Brown signed a bill expanding that benefit to up to 70% of an employee’s salary. The programs expansion will take effect in 2018.

Who’s Eligible?

The legislation applies to all covered employees, which is defined as:

  1. Someone who is eligible for a Paid Family Leave claim,
  2. Someone who started with a covered employer at least 90 days prior to the start of the leave period,
  3. Someone who performs at least 8 hours of work per week for the employer within the city (you must work in the city, but you are not required to live within the city),
  4. Someone who works at least 40% of their total weekly hours for that covered employer within the city.

That’s right folks—in the midst of recent anti-LGBT laws throughout the country, this legislation doesn’t discriminate. Anyone who meets the above criteria will be covered.  Being eligible for a Paid Family Leave claim falls under California’s disability insurance laws, but basically you have to have been employed prior to the leave period and would suffer a loss of wages when you need to take time off work to bond with a new child. This includes any new child, biological or adopted.

Very Few Employers Exempt

Government entities and employers with less than 20 employees are exempt, which means any private or non-profit business with 20 or more employees anywhere in the world will be considered “covered Paid Family Leaveemployers” and required to fork up the additional amount not covered by the State’s disability insurance program. Companies with less than 50 employees will be required to implement the legislation starting in 2018, while companies with more than 50 employees are required to begin January 1, 2017.

Where’s the Money Coming From?

The Paid Family Leave program is an extension of the State’s disability insurance program, which means 55% of the money comes from a tax on employees. Almost all private, and many government and non-profit employees, contribute to the states disability insurance program.  In fact, in order to be eligible to apply for paid family leave, the employee must have paid at least $300 worth of withheld taxes to the program (or if unemployed, you had to be looking for work). Until the Board passed this legislation, new parents were out the remaining 45% of their income.

Under the new expanded Paid Family Leave coverage that will take effect in 2018, workers making minimum wage will be eligible for 70% of their pay while on leave; employees making more than minimum wage will be eligible for up to 60% of their pay.

This means the remaining 30-40% will come from the covered employers. The Board’s bill is currently awaiting Governor Brown’s approval, but it’s expected he’ll sign.

There’s a Downside, but the Benefits Outweigh the Negatives

The biggest downside is the increased responsibility on behalf of the businesses, especially small businesses that may already be struggling. According to the Office of Economic Analysis Impact Report, the law increases the cost of hiring, increases employer compensation by close to $16 million (at a minimum), will reduce the cities jobs, will cause slow job creation and replacement, and would create negative multiplier effects on the local economy.

Only 55% of employees that claim assistance under the Paid Family Leave program actually live within San Francisco, which means the remaining 45% of non-resident employees will inevitably be spending, at least some of, the extra income outside of the city, which, in turn, negatively impacts those small businesses within the city that are footing the bill.

On the plus side, the law would create an additional $26.5 million in household income for San Francisco employees, which is much needed in an area where the cost of living is ever increasing. Although a broad step in the right direction for the U.S., it’s a modest one by global standards.

The U.S. is the only developed country in the world that doesn’t guarantee paid leave to new parents. The Family and Medical Leave Act only covers 12 weeks of unpaid leave. With New York recently mandating 12 weeks of paid leave for parents at 50% of their income, California is among only 2 other states offering paid family medical leave.

Although 12 weeks of paid leave for fathers ranks fairly well among paternity leave in other countries, the average number of weeks offered for maternity leave in countries around the world is 54. That’s 54 paid weeks for mothers.

A Prank Too Far: Is Google Liable for the Fallout of an Ill-Conceived Prank?

Google is committed to their pranks, coming up with inventive April Fools jokes every year. Just last year they had twelve different pranks running, from playing Pacman in Google Maps to suggesting the song Sandstorm for nearly every music video on YouTube.  In 2011, Google announced that all their products would default to the Comic Sans font.  They also introduced a Meow Me Now app, which would locate kittens in the user’s vicinity.  This year, Google outdid themselves, and it came back to bite them.

As one of their many 2016 pranks, Google added a “Send + Drop Mic” button to Gmail. The button was an orange affair that read “Send +” then showed an animation of a small hand dropping a microphone.  It replaced the usual “Send and Archive” button and was positioned immediately next to the “Send” button.  When clicked, the button added a gif of a Minion from the movie series Despicable Me dropping a microphone and muted the thread—preventing the user from seeing any further replies. Mic Drop

Even though the button provided a pop-up warning the user what would happen if they sent their email in this manner when you scrolled over it, complaints of issues stemming from the confusingly position of the feature starting rolling in almost immediately after the feature rolled out. A bug in the feature also made the normal send button sometimes function as if the user had clicked the “Send + Drop Mic” button.  Several users reported losing job opportunities, while others complained that the feature had actually cost them their job.

The feature was only up for 12 hours before Google discontinued it and issued an apology for any inconvenience it had created. Google has also stated that they are working to undo the damage by bringing back all replies to “mic dropped” email threads.

Given that it was April Fools’ Day, everything posted on the internet is suspect. There is a real possibility that the users complaining of lost jobs and job opportunities were playing a prank of their own or simply fabricating their stories.  However, the situation raises the question, could Google be liable for the jobs and jobs opportunities lost due to their prank?

Negligent Dropping of Microphones

Negligence is one of the most common civil causes of action. While the exact requirements for negligence vary slightly state-to-state, the accusing party generally needs to establish five things:

  • Duty – That the accused had a duty. You are always under a duty to act with the care of a reasonable person.
  • Breach of Duty – The accused has failed to act in accordance with their duty to another.         
  • Cause in Fact But for the act of the accused, the accuser would not have suffered injury.
  • Proximate Cause A reasonable person could have foreseen the damages of the accuser arising out of their act.
  • Damages The accuser has suffered some loss as a result of the accused’s negligent act.

Where people have lost their job or a job opportunity, their lost wages certainly represent damages. This just leaves the first four elements to figure out.

So did Google fail to act with the care of a reasonable person in their design and implementation of their “Drop the Mic” feature? This is a fairly fact specific determination, but we can look at what we know.  The design of the feature itself included a bug which made otherwise normal use of Gmail send the “Drop the Mic” version of that email.  In order to show whether Google acted with proper care, we would need to see if they knew about the bug prior to release.  Their apology statement certainly implies that they had no knowledge of the bug.  There could be a situation where the feature was created and released in such a slapdash manner that they should have expected substantial issues with the feature.  However, there is no evidence of this at this point and it seems fairly unlikely from a software company as established as Google.

So if the bug in the feature isn’t a breach of duty, is the implementation of the feature? There is an argument that a reasonable person would not have placed the “Drop Mic” button right next to the “send button” for the very reasons that occurred- users would click on the wrong button.  However, the button was of a bright color and looked substantially different from the normal “Send and Archive” button.

What’s more, the button created a pop-up explaining its function when the cursor scrolled over it. This being said, many users complained that they could only see the pop-up right before they clicked the “Drop the Mic” button.  Google has itself stated that they feel they should have included a confirmation pop-up that required a second click before “dropping the mic.”  The facts here are fairly tenuous, but there is a credible argument that Google’s implementation of their April Fools’ joke breached the duty of reasonable care.  This being said, it would be a heck of an uphill battle to prove it.

So with duty and breach established, sort of, let’s look to causation. Could a plaintiff show that but-for the “Drop the Mic” feature they would not have lost their job?  One of the very few instances of somebody losing their job over Google’s prank is a writer who claims he accidentally clicked the “Drop the Mic” button when sending his articles to his editor.  Due to the mute function, the writer states that he never received the suggested edits and missed his deadline.  His editor also took offense to the slight to her suggestions of the minion mic drop and ultimately fired him.

In a situation such as that of the writer, it seems likely that but-for the confusing positioning of the “Drop the Mic” button he would not have lost his job.

There is a real chance that Google may be vulnerable to a negligence lawsuit if the facts available are true and complete. However, not only may there be facts we do not know, the case is already fairly tenuous as to whether Google has actually breached a duty.  There is a real chance that Google may be vulnerable to a lawsuit, however it’s a slim chance at best.

Protecting Your Business

Google has opened themselves up to potential lawsuits through what seemed to be a fun prank. Their danger is at best moderate, but wherever possible, it’s best to avoid such danger all together.  When preparing to offer a product or service, consider the potential implications of the use of that product or service.  If you are unsure whether you might be placing yourself in a lawsuit’s crosshairs, consult a lawyer.  You don’t want to end up in a courtroom with a Judge dropping the mic.

Shots on Goal: Will the U.S. Women’s Soccer Team’s Gender Discrimination Lawsuit Succeed?

The U.S. Women’s national soccer team is among the top women’s soccer teams in the world—potentially the outright best. They’re currently ranked first in the world and generally rank no lower than second. They’re also winners of three Women’s World Cups, four Olympic gold medals, and over 17 other high-tier international cups.

The Men’s U.S. team, while filled with extraordinary talents, has never been able to compete with the ladies in terms of success. Currently ranked 29th in the world, they have never placed higher than third in a World Cup and have never approached the women in terms of success in other tournaments.

Given the consistent distinguished performance of the Women’s team, you’d think their pay would be greater than their male counterparts—or at a minimum similar to each other. You’d be wrong by a matter of degrees.  The men’s team makes over three times more for a loss than the women’s team makes for a win. Where the men win this discrepancy increases to as high as 13 times as much as the women.  This is before taking into account other contract incentives which widen the gap even further.

The women’s team has had enough of this discrepancy in pay. They recently filed a complaint with the Equal Employment Opportunity Commission accusing the U.S. Soccer Federation of gender-based discrimination in their pay.  The numbers above are from their complaint.  The difference in pay between men and women’s sports is far from a new story.  However, the U.S. Women’s soccer team face an uphill battle in their lawsuit.  In order to understand why, let’s look at the law behind cases alleging gender-based wage discrimination.

Gender-Based Wage Discrimination: The U.S. Women’s Soccer Team’s Lawsuit

Hope Solo, famous goalkeeper for the U.S. team and co-plaintiff in the team’s complaint, has been quoted saying “we are the best in the world, have three World Cup championships, four Olympic championships…[and the players on the men’s team] get paid more to just show up than we get paid to win major championships.” So if this is true, how could the women’s team lose a case alleging discrimination in how they get paid?

The Equal Pay Act makes disparate pay based on gender illegal.  In other words, an employer can’t pay you less because you’re a woman or because you’re a man.  In order to successfully sue under the Equal Pay Act a plaintiff must show several things: you’ve been wrongly discriminated against based on a protected characteristic, you’re being paid unequally for doing the same work, and you work under similar conditions in the same company as those being paid more than you.  US Soccer

Discrimination can be shown through patterns in the behavior of your employer, such as consistently paying women less across the board. Work is considered equal where it takes place in similar working conditions and requires the same level of skill, effort, and responsibility.  Based on the women’s team’s complaint, proving both of these should both be easy as dribbling the ball for the ladies.  They have demonstrated that the women’s team is paid less across the board for the same work as the men’s team.

While U.S. Soccer disputes the accuracy of the women’s teams’ figures, even were the difference in pay substantially smaller it could still establish disparate pay. However, even though the case looks strong on its face, there are two huge hurdles the women’s team will need to overcome in order to be successful in their suit: the difference in earnings between men and women’s soccer and the fact that the women’s team collectively bargained for their current pay agreement.

How the Shot Could be Blocked—Difference in Revenue

Under the Equal Pay Act, there are several ways an employer can counter a claim of wage discrimination.  These ways include, among other things, a proven ability to generate higher revenue to support a differential in pay.  Where an employer can show such an alternate basis for the difference in pay, it is a defense to an allegation of wage discrimination.

U.S. Soccer will certainly argue that the ladies make less money than the men and that this is the basis for the difference in pay. In their complaint, the women’s team alleges that last year they made $20M more in revenue than the men’s team while attracting similarly sized crowds.  However, this being said, last year’s Women’s World Cup garnered $17M in sponsorship revenue.  This is a record amount, nearly tripling the income from 2011.  The men’s World Cup raised $529M last year.  The prize pool for the last years Women’s World Cup, a substantial source of potential revenue, was $15M.  The prize pool for the men’s World Cup was $576M.

It is extremely dubious that the men’s event is so much more exciting that it merits 38 times the prize pool of the women’s event.  However, be it social stigma or other cause, this is the reality of the situation.  U.S. Soccer will argue that this substantial difference in prize pool and sponsorship money justifies the difference in pay between the men and the women.  Hope Solo has told news sources that she and her teammates believe they would make similar money to the men if they were provided a similar marketing budget.  Unfortunately for the team, without evidence to back Ms. Solo’s argument up, U.S. Soccer is likely to prevail in their defense.

Disagreeing Over the Rules—Is the U.S. Women’s Soccer Team Bound by Their Contract?

Even if the team can overcome this argument with proof of equivalent or greater revenues to the men, they face another serious legal problem in their case—the fact that the team’s union negotiated the terms of their contract. An agreement which, according to U.S. Soccer, they negotiated for not once, but twice.

It is unclear whether the team is still bound by this contract. The agreement ostensibly expired in 2012.  However, U.S. Soccer claims that an agreement was later signed extending the agreement.  U.S. Soccer has argued, in response to the complaint, that the contract includes benefits not included in the men’s contract, such as maternity leave.  They also state that pay structure, negotiated for by the team’s union, trades a more conservative pay structure for guaranteed compensation.  This argument of pay structure may undercut the team’s discrimination claim by explaining the difference in compensation between and men and women in a way that does not imply gender-based discrimination.

A secondary, and somewhat less established, concern is the fact that the contract is a product of union negotiations. The right to be represented by unions is ensured by the National Labor Relations Act (NLRA).  There are examples of things normally illegal under federal law being acceptable where they are the product of union negotiations.  For example, the salary caps common in sports would generally be considered illegal are usually ruled permissible where agreed to by a union.

However, there is very little case law as to how to treat any particular conflict between the right to union negotiations under the NLRA and other federally guaranteed rights.  It seems unlikely that something as fundamental to civil rights as the Equal Pay Act could be waived by union negotiations.  However, U.S. Soccer could credibly claim that, even if the contract is wage discrimination, the fact that the union negotiated for the contract prevents them from being liable.

The 2015 Women’s World Cup Final, with the U.S. women’s team taking it all, was the most watched soccer match in U.S. history. The women on the team are extraordinary athletes, worthy of every accolade they have received.  Disparity in pay between male and female athletes is nearly universal to sports; the goal the ladies of the U.S. Women’s team have set themselves is a noble one.  However, their case is not shooting on an empty net.  They’ll have a lot to overcome if they hope to succeed in their lawsuit.



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