Small Claims Court

Log Off

by

An interesting decision was released last week by the Superior Court of New Jersey, a US state-level appeal court. According to the facts of the case, the defendant had accessed a co-worker’s Yahoo e-mail account from a computer lab terminal, which the plaintiff had inadvertently failed to log out of. The snooping defendant noticed an e-mail thread mentioning them, printed out the e-mail, and confronted the plaintiff with it. Obviously shocked by the invasion of privacy, the plaintiff immediately filed the suit, relying on the provisions of a state wiretapping statute – which apparently allows for both civil and criminal remedies.

It appears that historically, the test under this New Jersey law has been premised on the expectation of privacy held by the person whose communication was “intercepted”. That’s similar to the case law on the issue in Canada. However in the present case, the court was asked to decide whether the defendant knowingly accessed the account without authorization, and if not, what the extent of that authorization was.

Because the plaintiff had accessed their own inbox, and had left the index screen of the inbox up on the terminal when they left, the court found that the defendant did not infringe the law prohibiting access without authorization. The only question left to the court (in this case, a jury) was whether the defendant had exceeded the authorization provided by the plaintiff’s failure to log off. The jury found that the defendant did not exceed the plaintiff’s “tacit authorization” to access the account. On appeal last week, the court upheld the trial court’s decision – the snooping defendant was vindicated.

In Canada, the facts lend themselves not to a civil trial, but to criminal proceedings under the Interception of Communications provision of the Criminal Code. However the statutes are otherwise not all that different and much of the key phraseology is similar enough to think that the New Jersey case law might be relevant.

I don’t agree with the specific questions put to the jury, and the departure from the pure expectation of privacy test is unusual, but it would certainly be interesting to see how a Canadian case on similar facts would be interpreted.

Until we have such caselaw, the takeaway from all this is to protect your data and your communications as much as possible – any failure to do so, even accidentally, could be viewed as tacit authorization to snoopers and other evildoers.

Scott R. Young

Policies and Procedures

by

Every once in a while we are lucky enough to get to work on the holy grail of a client’s operations – the policies and procedures manual. Sometimes it’s after our business compliance audit turns up some unexpected sources of liability, sometimes it’s after some triggering event has highlighted the need to put things on paper, and sometimes it’s a proactive first step in putting together a company right from the ground up.

The P&P manual is a great place to tie employees into the workplace by giving them a comprehensive document that outlines all of the rights and responsibilities associated with their job. It includes government mandated policies that address privacy, harassment, violence, accessibility standards and many more. It also sets out the specifics of the discipline policy so there are no ambiguities (and far fewer lawsuits) in the event of discipline or termination.

I probably get a lot more excited about putting these together than Inga or Paul or Murray do – but they often have a lot of input into them. Either they have knowledge of the client’s operations that help customize a policy that works in their workplace, or they have court experience on a particular issue that goes directly into how the policies and procedures are written.

If you are putting together a business from the ground up or are ready for a spring cleaning to make sure that your workplace is compliant from the top to the bottom, please have competent legal counsel draft some policies that work for your business, or review your current policies to ensure that they reflect the hundreds of legislative changes that have occurred in the last decade.

Scott R. Young

ILA

by

Amidst all the Facebook IPO hype this week, there was the release of an e-mail from Mark Zuckerberg to his corporate lawyer, instructing them to dilute Facebook co-founder Eduardo Saverin’s share in the burgeoning company.

Aside from the obvious professional responsibility issue that this presents for the lawyer (assuming the lawyer was acting for the corporation, they had an immediate duty to declare a conflict of interest and cease all representation of the company), the story highlights the need to get good independent legal advice before entering into any legal agreement. I had a great example of the right way to do things last week – we were retained to give ILA to a shareholder on a Shareholder’s Agreement that they had largely formulated. Despite the fact that this shareholder had been the principal instructor to the corporation’s lawyer, and was intimately familiar with most of the terms of the agreement, the corporation’s lawyer still thought it would benefit all of the shareholders to get ILA – not just to waive it as is sometimes (unfortunately) done.

The shareholder was convinced that ILA would add value even if only to have a fresh set of eyes review the agreement. In our review, we offered more than that; considering various critical events from the shareholder’s individual perspective was very different than the perspective of corporate representative they had while preparing the agreement.

The details of the Facebook dilution are not entirely clear (the ensuing litigation was settled and not much is on the public record) but presumably the restructuring that diluted Savarin down to 10% was ultimately effected, and presumably without Savarin retaining counsel to explain this to him. And when he did realize the dilution, litigation was the only option available.

Getting independent legal advice is not cheap, but the value in what you are getting is often immeasurable. If you are entering into an agreement of any significance (including potential future liabilities), you absolutely must have legal counsel review the agreement and confirm that your interests are protected (or that your unprotected interests are known to you). It’s that simple.

Scott R. Young

The Andriessen Document Advantage

by

One of the many positives to being a small law firm is the close interaction between the litigation and non-litigation sides of the firm. We meet together on a regular basis to discuss files from both perspectives (how to avoid litigation and what strategy to pursue when litigation becomes inevitable). We also talk about avoiding disputes from the very beginning of a commercial relationship – this usually means getting the documentation right.

When we draft documentation for a client, we try to find out as much as we can about the way they do business; or more exactly, we find out about the way they want to do business and then we try to make sure that its completely compliant with the statutory framework under which the client operates, and any applicable case law. When possible, we try to approach the process holistically, and address as much of the business relationship as possible. We consider client solicitation, customer intake, the review of documents, imbalances in bargaining power, the need to retain specialized counsel on both sides of a transaction, the execution of the documents, the clarity of the documents, the term and termination of the agreement and what rights the parties have after the life of the document has ended.

When we talk about the clarity of legal documents, we’re talking about more than plain language and the clarity of our words – although we are talking about that too. We’re talking about everything from the readability of documents to font size, white space, kerning, the appropriate placement of margins in the event that a document will be faxed repeatedly, organization, numeration, and everything else we can think of. And then the litigators look at the document from the perspective of a judge, squinting to read and understand what exactly the parties have bargained for. And we fine tune.

At the end of the day, our goal is to provide a legal document that envisions the intention of the parties in a clear manner, contemplates current and incoming legislation, is adaptable for changes in case law and will add value to the underlying interaction between the parties. Our multi-disciplined and flexible approach produces excellent documentation. And that documentation improves the systems of our clients.

That’s the Andriessen Document Advantage.

Scott R. Young

Liability Waivers

by

As I was playing soccer with my Monday night league team, my thoughts shifted from the warm mid-summer breeze and lighthearted enjoyment of a recreational game of footy to the liability waiver I signed (or in this case didn’t sign) when I joined the league. I can’t say exactly when my thoughts shifted, but it was right around the time that the opposing team’s forward stomped his cleats onto the top of my foot while I was tackling for the ball. The resulting sprain led to a trip to the ER, three trips to athletic therapy, crutches, a cane and several ice packs.

It could have been worse. A few years ago, I played on a team full of lawyers who I worked with. In one month, I tore my ACL while another associate tore his Achilles tendon; a senior partner tore his quadriceps. Although we had all signed waivers, the league management were sweating heavily. The fields were in bad shape. The referees weren’t great about enforcing fouls for contact. There wasn’t any provision for emergency medical care. The waivers were worthless and they knew it. I’m sure they sweated right up until the limitations period expired two years later. But we didn’t sue. And there won’t be any litigation this time either. I accepted the risks inherent in the sport and it’s not an issue. However, the things I’ve seen in my practice tell me that there are enough people and strange circumstances out there to make the liability waiver a very important part of a lot of business plans.

The basic presumption is that by acknowledging the risks inherent in a given activity or undertaking, the participant accepts responsibility for any accidents or injuries that may befall them. In many cases this is true. And a good liability waiver is a great risk mitigation strategy. It does require some thinking about the nature of the risks involved though, and it does require the business that exposes customers or clients to risks to take an active role in minimizing those risks to the extent reasonably possible.

If you’re thinking that you can have someone sign a waiver and that you will be completely indemnified of all blame regardless of your subsequent behaviour, any changes in the risk landscape or a host of other factors though, you’re wrong. There are a number of things that can deflate a waiver. Jurisdiction-specific legislation. Issue-specific caselaw (ie you can’t make someone indemnify you for killing them, for example). Misrepresentation. Failure to meet the Standard of Care required. Lots of things.

So if you are involved in a risk-intense business activity, I would highly recommend having your waiver documentation reviewed on a regular basis by counsel who are knowledgeable and familiar with your business practices. And if you, or someone you know, has been injured in an accident, you may be entitled to a LARGE CA$H SETTLEMENT. But you’ll have to call someone else for that, because that’s not our bag.

Scott R. Young

Andriessen & Associates Lunch and Learn

by

We’ve rolled out a new service for clients that has met with a considerable degree of success; so much so that we’re planning on expanding it in the coming months. Combining two of my favourite things – eating and getting free legal advice – our Lunch and Learn series focuses on getting small groups of clients into our office to talk about areas of law specific to their interest.

The intimate lunchtime gathering is the perfect setting. Instead of sitting and listening to a lawyer drone on about the law, the atmosphere is much more give and take and we get to talk about the real world business application of the law. It’s a good place to find workable solutions for our clients. And it’s a good place for us to find out what our clients are doing in their day to day operations – we do as much learning as anyone.

Inga had the opportunity to speak about our 30-60-90 Sue™ philosophy to a few groups recently and it was very well received – to some clients, the idea of getting paid for the work they did was somewhat revelatory – to others, it just tweaked the good habits that they already had.

Paul Voorn will be hosting a Lunch and Learn soon on Construction Lien Act considerations. If you perform any construction services or have an interest in commercial property, this event will be enormously beneficial to you.

I’m planning a complete corporate compliance Lunch and Learn in the coming weeks that will deliver a broad overview of the current legislative scheme and a focus on what smaller businesses really need to concentrate on in terms of legal compliance.

Also in the pipeline, some litigation-oriented events, focusing on the stages of a lawsuit, as well as some specific corporate events.

If you have any ideas for a topic that you’d like to see covered, or want to attend one of the lunches I’ve mentioned, please drop us a line.

Scott R. Young

Settling a Business Law Claim

by

Last week the headlines in Canada bore the news of the “settlement” in the Omar Khadr case.

Facing life in prison, Khadr chose to accept 8 years instead with a possible reduction if the jury hearing the facts of the case came back with a lower term.  They didn’t.  The jury would have sent him to jail for 40 years.

If you are Omar Khadr, you’ve made a good deal.

In the litigation end of our firm, settlement is a reality of many of our files.  The statistic that is generally accepted for civil litigation is that 90% of cases settle before trial.

As we are a business law firm, the emotional component that is present in other types of civil litigation (personal injury, family law) is generally not a factor and that makes settlement much more practical – it is a business issue, do the numbers make sense?

Things that need to be considered in settling include, the legal fees that will be incurred going forward, the amount of time it will take to get to trial and the ability to collect your judgment from the party you are suing.

Another consideration in settling is the structure of the settlement.  When you go to trial, a judge can only award you what you are asking for.  If you are defending a law suit and lose, then the judge will order you pay an amount of money.  The judge will not give you time to pay.  However, if you settle before trial, many times you can settle with payments over time, thereby allowing you to control your cash flow.

When I was in law school our profs loved to tell us that a good settlement is one in which neither party is happy.  As a lawyer with 17 years experience I have found that not to be the case.  If a settlement is not something that my client will benefit from (thereby being happy) I will not recommend it.

Inga B. Andriessen, J.D.

Follow Through

by

In this blog entry, I will tell you one simple rule that is guaranteed to reduce all of your legal fees, increase your protection from liability and ensure that your affairs are in order.  Actually, I already have in the title of this entry – follow through.

If you have been reading this blog for the past few months (Hi Mom!), you will have garnered all sorts of tidbits about what lawyers do and how we do it.  You will understand many of the areas where we can help you do what you do better and you will have some idea of how bad things can get when they get bad.

But the one thing that we can’t do in a lot of cases is finalize the work that we have done.  That part is on you.  I suspect that many people feel that once they have gone to the effort of making that appointment with their lawyer and giving authorization to draft a document or to act on their behalf in some capacity, they can breathe a sign of relief.

In reality, the value of what we do often doesn’t materialize until the job is done.

For example, I usually give my estate clients my standard legal advice after they leave my office, having just delivered their Will instructions – don’t die until we get this signed!  While there is an attempt at levity there, there is also a very serious point – the work that you pay for isn’t doing anyone any good until it’s done.

Unfortunately life gets in the way.  Between that first visit with the lawyer and finalizing the work, things happen.  You may put off an e-mail asking for your instructions until later or you may leave a finished document in your desk drawer, to be signed at some convenient time that never seems to come.

Whatever the reason, if you have retained counsel to review your business processes and make recommendations, but don’t act on them, you have wasted your money.  If you have retained counsel to draft a business agreement or to address a compliance issue, and haven’t signed off on the agreement, you have wasted your money.

But most importantly, delays in finalizing legal work mean that you are not protected, or that the problem that you brought to us, remains unsolved.  This is the biggest issue and the one that can ultimately lead to the greatest cost.

If you have legal work in progress that is all but finished, please follow up on it and do what it takes to finalize it.  You’ll be lucky if you never know how much that might save you.

Scott R. Young

Summertime – It's Not Just for Vacations Anymore

by

I fondly recall summertime when I was a kid – two months of no school & lots of fun, free time and sleeping in.   As a teenager and then young adult in University,  I loved summer time as the two to four months when I could earn a lot of money … and spend it as well.

If I were a teacher I suppose I would still fondly look forward to summer for the same reasons I did as a kid; however, everyone  who knows me realizes that I am much better suited for litigation than shaping a gaggle of young minds.

As a Business Trial Lawyer,  summer is a time when Trials are generally not scheduled as it is too hard to pin witnesses down.    With Trials waiting until cooler weather, this is a great time of year to get the groundwork done for matters that will be addressed in the fall – so there are many cross-examinations and discoveries going on in the firm right now.

A bit of a twist this summer, likely due to the economic downturn, is the number of new law suits we’re starting – many clients realize that the fortunes of their debtors are not going to improve with time, so it’s time to sue to get paid.

Of course, summer is not just for work.  Mirvish Productions is featuring Legally Blonde this summer and for some reason, many clients have suggested that I take in the show  – I’m pretending that’s a good thing.

 Inga B. Andriessen, Sr. Lawyer

Pay Me Now or Pay Me Later

by

I have been working on some trade-mark opposition work lately; the kind of work that involves advocating against the registration of a trade-mark.  We do this sort of thing when a client has registered or unregistered trade-mark rights and where someone else is trying to register a trade-mark that is confusingly similar.

 

Opposition work is inherently frustrating.  The government fees associated with filing oppositions are almost three times as high as those involved with an application.  The evidentiary burdens are higher with opposition work.  The amount of time and effort spent in correspondence with CIPO and opposing counsel is significantly higher in opposition work.  Correspondingly, the legal bill associated with opposition work is much higher than with application work.  Put another way, the cost of making an application in the proper format, at the proper time, is substantially lower than the cost of maintaining trade-mark rights after the fact.

 

And the opposition process is only one form of dispute resolution.  Injunctive relief, passing-off litigation and motions at the Federal Court are a few of the choicer (and costlier) ways of dealing with trade-mark squabbles.  And all of them are exponentially more expensive when the trade-marks in question are not properly registered, maintained and protected.

 

I always try to drive this point home with clients.  It is of particular importance to smaller, newer businesses, or businesses with new product lines.  Branding is everything.  Commensurately, the proper legal foundation for that branding is of the utmost important.  And while there are few guarantees in law, I can assure you of this – if you have a successful brand, and that brand is not secured to the full extent available under trade-mark law, you will pay thousands or tens of thousands, or perhaps hundreds of thousands or maybe even one million dollars (*raises pinkie finger to pursed lips*) in trade-mark disputes throughout the life of the brand.

 

Call us and sort it all out before it comes to that.

 

Scott R. Young