Understanding Electronic Signatures and Online Contracts

One of the developing area of contract law are Electronic contracts and electronic signatures. Many people are surprised to learn that these are just as legal and enforceable as paper contracts due to Federal legislation enacted in 2000, known as the Electronic Signatures in Global and International Commerce Act (ESGICA)

This 2000 legislation is great news for companies that conduct business online, particularly companies that provide financial, insurance, and household services to consumers. The law also benefits B2Bs (business-to-business websites) who need enforceable agreements for ordering supplies and services. This law also helps small businesses conduct business entirely online.

What Are Electronic Contracts:

This is agreement created and "signed" online without any paper being involved. For example, you write a contract on your computer and email it to a business associate, and the business associate emails it back with an electronic signature indicating acceptance. One form of electronic contract is a "Click to Agree" contract, this type of contract is usually used when downloaded software is involved: The user clicks an "I Agree" button on a page containing the terms of the software license before the transaction can be completed.

On electronic contracts, people use several types of signature,  these include typing the signer's name into the signature area, pasting in a scanned version of the signer's signature, clicking an "I Accept" button, or using cryptographic "scrambling" technology.

Even if electronic contracts have been involved at some point, there is always the option of switching to paper contracts if doing so becomes more desirable.

Even though electronic signatures are now widely accepted there are still some areas where people CANNOT use electronic signatures in order to prevent possible abuse. These include:
1. documents relating to adoption, divorce, and other family law matters
2. wills, codicils, and testamentary trusts
3. notices of cancellation or termination of utility services
4. court orders, notices, and other court documents such as pleadings or motions
5. notices of default, repossession, foreclosure, or eviction
6. notices of cancellation or termination of health or life insurance benefits
7. product recall notices affecting health or safety, and
8. documents required by law to accompany the transportation of hazardous materials.

They Don't Teach Networking in Law School...

Our firm has joined an international networking program called Business Network International.  Each locality has different Chapters.  We are a part of Chapter 24- The Grand Central Chapter.  The idea is interesting- the Chapter is comprised of only one professional from each field. 

Each meeting every member stands up and gives a 60-second commercial about their business: What the business is, what sets them apart from the competition and who an ideal referral is.  Then, in front of everyone each member has to get up again and announce a referral that they are giving or a testimonial for another member’s services.  The purpose of the meeting is to exchange business.  Many of the members are successful because of their membership in BNI.  Our chapter meets every Wednesday morning from 7am-8:30am.  The monthly fee is $100.  Attendance is mandatory.  It is basically forced networking, and because you pay a fee, you are more inclined to go and get the most out of the group. 

BNI also requires that members meet one on one outside of the group meetings, and a training which explains how to get the most of your experience and also how to become a valuable resource to your chapter.  Believe me, I am not someone who enjoys getting up early and networking in general, but this has really helped my outlook on business, improved my public speaking and one-on-one business conversation and has become another mode of advertising for our firm.

Last night I attended the 3-hour training.  BNI was founded by Dr. Ivan Misner who teaches and is an expert in network.  I came out of the seminar with some helpful networking pointers I thought I would share.

1)      Always have your business card readily available to hand out.  If you have a referral relationship with anyone else, have their card on you as well.  You never know when you will bump into someone who could use your services.

2)      Start listening for people saying phrases like: “I don’t like…”, “I need…..”, “Do you know someone….”, “I am looking for…..”  These phrases are frequently followed with some service or good for which the person is in the market. 

3)      “Givers Gain”- Giving others business makes them want to return the favor.

4)      “Help me help you”- Let people know who exactly you are looking for as a referral.  You can use names of companies, specific types of people.  Avoid generalities like: “I’m looking for anyone in a small business…”  Small businesses actually comprise 350 employees or less so most people work in small business.

- Sapna Gupta, Pantano & Gupta

At A Crossroads in Patent and Fashion Law, Color Is Debated...

A judge was recently asked whether or not a company had a right to a single color. The center of the case involved Louboutin, the famous high-end designer whose red soled heels have thrived under a patent that had been issued to them. However, a recent look at the patent itself by the court questioned whether Louboutin's red soles are essential in the function of the product.

The court deemed that they are not, citing that the red soles are nothing more than ‘expressive, ornamental, and aesthetic…’ The court came to this decision after comparing other cases that involve color: Owens-Corning’s pink fiberglass insulation, and John Deere’s green tractors and equipment. Whereas Owens-Cornings use of the color pink has no other use than to distinguish itself from its’ competitors, John Deere’s use of the color green is little more than functional, and doesn’t necessarily serve to distinguish the brand from others.

Much like John Deere’s use of color, Louboutin’s use of the color red serve the same purpose: an essential function and is an aesthetic decision, and can not be patented. “The [bottom] of a shoe…coated in a bright and unexpected color, the outsole becomes decorating, an object of beauty. To attract, to reference, to stand out, to blend in, to beautify, to endow with sex appeal-all comprise non-trademark functions of color in fashion."

This is an interesting and even entertaining case that highlights some of the nuances of patent law, and how it can be used and enforced. It also displays how patent law applies within a specific industry, and even an aspect of that industry (in this case, color.) Ultimately, the patent was deemed worthless, and even a mistake by the Patent and Trademark Office for granting the patent in the first place.  

http://newsandinsight.thomsonreuters.com/Legal/News/2011/08_-_August/Is_Louboutin_shoe_more_like_pink_fiberglass_or_green_tractor_/

What to Expect: Bankruptcy 341 Creditor’s Meeting

For inexperienced Bankruptcy attorneys representing a debtor, below is an introduction that may serve helpful before attending your first 341 Creditor’s meeting. 

The 341 Creditor’s Meeting is generally the only Court appearance in a Chapter 7 Liquidation Bankruptcy case and is the first hearing of two hearings in a Chapter 13 Reorganization Bankruptcy case.  The second and most importation court appearance in Chapter 13 is the Confirmation Hearing (see What to Expect: Chapter 13 Bankruptcy Confirmation Hearing). 

The 341 meeting in New York is held in a conference room in the Court.  The purpose of the meeting is for the Trustee to investigate the Debtor’s financial status.  Creditors are invited but rarely appear.  The hearing is mostly a conversation between the Trustee and the Debtor, and is a very informal setting.   

What to Bring: Aside from anything that the Trustee’s office has specifically requested from you, always make sure that you have printed the entire Bankruptcy filing.  The Trustee will go through and refer to specifics, and it is always good to have a copy of front of you to which you and your debtor may refer.  Also, if you have not already provided the signed filing, past 2 years tax returns, Credit Counseling certificate, pay stubs from the 60 days prior to filing, to the Trustee’s office, have a copy of the same available to hand to the Trustee. 

**Make sure your Debtor has her/his Social Security Card and government-issued, Picture ID. 

If you are lucky, posted outside of the Courtroom will be a list of the scheduled cases giving you an idea of the order in which your case will be called.  The Trustee will be sitting at a table in the front of the conference room.  We like to go a little early and listen to the previous cases to determine the common questions the Trustee asks each Debtor. 

When your case is called you sit across from the Trustee to the left of your debtor.  The Trustee will ask the Debtor to swear under oath and then ask you to note your appearance.  You should then say “[Your Name] attorney for the debtor, admitted to the [name of District].”  The Trustee will then proceed by asking your debtor a series of questions based on the filing and especially the schedules. 

Common topics covered by most Trustees in the aforementioned districts:

1) If there is any real property or cars

2) Monthly income and job-related questions

3) One Trustee always asks what has put the debtor in this financial situation.  A common answer is “Living above my means”

4) Factors surrounding residency of the debtor

5) Monthly expenses as per the schedule

You may interject if necessary to correct a discrepancy.  If the Trustee notes that there are errors or inconsistencies in the filing, assure the Trustee that you will amend the filing to reflect the correct information.  Unless there is something seriously wrong with the filing, or if the Trustee finds that the Debtor’s filings are inconsistent wit the reality of the Debtor’s situation, the meeting should be quick and painless.  After the meeting, you may follow up with Trustee’s office if necessary.  The Trustee will then make a determination to recommend discharge or dismissal some months later.

     

Bankruptcy ECF filing tips:

If your client need’s to file immediately and are not in the position to complete all required paperwork (this is common if there is a pending foreclosure sale) then you may do the “skeleton filing” either ECF (preferred by the Court) or in-person the.  The filing must include the following: Petition (Official Form B1), The Declaration of the Debtor (Official Form B1D) for which you will also need the debtor to attest to the fact that he/she has completed Credit Counseling Course (can be done online, usually about 1 hour, we use Greenpath at greenpath.com); the Creditor’s Matrix (List of Creditors)- if done ECF must be filed under separate area called Creditor Maintenance, and the Statement of Social Security Number (only if filed in person).  **Note: If filing in person, the forms must be signed by the debtor.  If ECF, then signature lines should include electronic signature: “/s/ Name.”

In general, when filing ECF:

1) If you are not having all of the forms signed and scanned in, you must include electronic signatures where appropriate.  “/s/ [Name]” signifies an electronic signature. 

2) Format of all documents except for the List of Creditors must be in PDF or some picture format.  The List of Creditors must be in txt format.  I have used Wordpad and Notepad to generate the filename.txt. 

3) The first line of List of Creditor’s must only have the Debtor’s name as filed and case number if available.

4) Redaction: On all forms filed ECF, you must redact all but the last four digits of a debtor’s Social Security Number.   

5) I have not tried this yet: The hearing schedule, “calendar” is based on the time of filing.  The earlier you file, the earlier you are scheduled.  It may be worth it to wait until midnight and file for the next day in order to ensure that you are not waiting at the Court for hours. 

6) Filing Amendments will sometimes cost more money depending on what is being amended.  If you have more than one amendment for which extra costs are necessary, you may, if the Court allows, scan all amendments as one PDF and upload as one document.  

**Note: The above information is based on our experience in Southern and Eastern District Bankruptcy of Courts in New York.  If you are not appearing in these Districts, then this may not apply.  

What is a Traverse Hearing?  In New York, a traverse hearing is held in Civil cases, when a party alleges improper service.  At the hearing, the burden lies on the moving party to present evidence as to proper service which may then be rebutted by the party alleging improper service. 

In civil litigation, the traverse hearing may be waived by the parties, which will result in a granting of a motion to vacate.   

What to Expect: Southern District of New York Bankruptcy Court- Chapter 13 Confirmation Hearing.

The Southern District of New York Bankruptcy Court is regal, the proceedings are formal, and the process a bit intimidating if you are not one of the Court’s regulars.  So, we are taking the liberty to provide a few tips, whether you are pro se or an attorney regarding what to expect at a Chapter 13 Confirmation Hearing in the Southern District of New York.  It is important to know, however, that each Judge and each district varies in their procedure. 

First, outside of the Courtroom is a list of the cases on the Court’s “calendar” or schedule.  Find your case by name or Case Number.   The information written next to your Case is what the Court has listed as the purpose of your appearance.  For example, it may read: “Chapter 13 Confirmation Hearing:” 

Inside the Courtroom, the Judge will take the bench, and the Trustee will sit at a table in front of the bench.  When your case is called, if you are pro se you approach the podium, if you are an attorney,  approach the podium and have the client sit at the table opposite of the Trustee.  You will likely hear other cases preceding your own and should follow suit.  

Your introduction should include a few components:

1)     Greeting to the Court: “Good morning/afternoon your honor, [your name], for the debtor (if you are the attorney)”

2)     The purpose of your appearance: “This is the [first/second/etc…] time on for the Chapter 13 Confirmation hearing for debtor, [name of debtor]”

3)     Whether it is ready for confirmation or not, in which case you are requesting an adjournment AND:

a.      The reason it is ready for confirmation: explain briefly the situation of the Debtor, what percentage of the debt the payment plan covers, and whether the debtor is current with payments to the Trustee pursuant to the Plan.  If not, assure the Court that the debtor undertakes to pay the Trustee, now or after the hearing. 

b.     The reason it is not ready for confirmation: Explain why you are requesting the adjournment.  For example, you have just received the

4)     The Judge will then ask the Trustee if he/she wants to add anything.  The Trustee will advise the Court of whether or not payments from the Debtor are current, and any other issues that exist, as well as whether the Trustee will recommend confirmation of the Plan, a dismissal of the case, or adjournment. 

5)     If the Trustee advises dismissal of the case and the Judge approves, ask that it be dismissed without prejudice so that the Debtor may refile in the future. 

Other Chapter 13 tips:

1) In the Southern District, you must file an Affidavit or, if you are an attorney, an Affirmation of Service stating that the Plan has been served on all of the creditors at least 31 days before the Confirmation hearing.

2) In the Southern and Eastern District, you must make sure that the Trustee receives the signed petition and schedules, appraisals of real property, past 2 years tax returns, pay stubs from the 60 days prior to filing and any other requested documents at least 2 weeks before the 341 hearing.  

Importance of IP Protection Game Plan for Small Businesses

The competition that exists in the market for small businesses is stronger than ever due to various factors such as global and online markets. For this reason, small businesses should ensure that their patent and trademark needs are met and maintained now more than ever.

With regards to patents, one must fully understand what it means to protect intellectual property. A patent should not be seen as a pass to produce something and more as a tool that prevents others from producing that good. Knowing what one needs to protect oneself is crucial, and IP does not always come down to patents. Even still, having a patent or other tools in place does not always mean you are immune from legal battles and encroachment, nor does that mean that competitors won’t try and get around your patent, and succeed in doing so. In an increasingly global economy, what may protect your IP in the United States, doesn’t mean it is protected elsewhere.

One’s business can depend entirely on the products and services it provides, and leaving your intellectual property unattended can be damaging. A strong, strategic IP game plan formed with an experienced attorney is the best way to ensure that you intellectual property, and your company, is well protected.

http://www.nytimes.com/2009/08/06/business/smallbusiness/06guide.html?adxnnl=1&ref=legalissues&adxnnlx=1312919197-uhLq0cfDwnTw7MzHOfDAXA