Litigation Considerations

Part 11 of a 12-part series on Legal Considerations for Your Missouri Leasing Business: What You Should Consider Now, Later, and Throughout the Process

Whether you encounter a tenant who breaches your lease, a contractor who improperly repairs your property, or an individual injured on your property, at some point your company may be faced with the need to pursue or defend against a lawsuit. It is important to understand what your company should consider when it comes to our court system.

What type of paperwork do you have?

The first item to consider when an issue arises is whether the issue is documented.

• If your contractor failed to properly repair the property, do you have a copy of your contract? What about pictures of the repairs?
• Regarding tenant disputes, were your discussions and agreements in writing or, if initially in person or over the phone, did you follow-up with a letter memorializing your discussion? Do you have a copy of any demands for unpaid rent or to do/cease doing some activity?
• Regarding an accident at the property, did you have warnings in place or written rules concerning the source of the accident?

What type of documentation was in place at the time the issue arose and what you have available will be crucial in evaluating whether and how to proceed with a lawsuit, what defenses are available, and whether settlement may be appropriate if your company is served with a court summons.

You will likely need to retain an attorney to represent the company in court. Continue reading »

Drafting the Right Lease Agreement

Part 10 of a 12-part series on Legal Considerations for Your Missouri Leasing Business: What You Should Consider Now, Later, and Throughout the Process

Congratulations, you have a space to lease and someone interested in leasing it. Now you need to define the rules and requirements which will control the relationship between you, as landlord, and the tenant – you need to draft a lease. (Of note, it is possible to have an unwritten or oral lease, but we strongly discourage that practice as it significantly increases the likelihood you’ll end up in court with a tenant arguing who is responsible for what and when). This could be the starting point for a one-year, 10-year, or longer relationship with your tenant, so it is important that everyone understand the parties’ respective rights and obligations from the outset.

The full scope of items you might or should consider incorporating into your lease will depend upon many factors, including the nature of your property and whether your tenancy is residential or commercial. Here are a few items to consider, regardless of your company’s particular circumstances.

1. Identify and Include the Appropriate Parties.

Landlords: The lease should identify your company as the landlord and the party to whom rent should be payable. If you operate several companies which each own a leased property and you set up another company to manage those companies (streamlining rent and other issues), please ensure you have a written property management agreement in place between your two companies and each tenant lease identifies and distinguishes each of your company’s roles.

Tenants: If your company is leasing residentially, ensure that everyone that is going to live at your property is made a party to the lease so they can be made jointly responsible for the lease’s requirements. Co-signers (often parents of the individual tenants) should also be properly identified and required to sign the lease. If your tenant happens to be another company, you may want to consider requiring the managers or members of that company to sign a personal guaranty – depending on how secure you feel that the company will fulfill the obligations of your lease. Continue reading »

Preventing Sex Discrimination: The Case for Implementing More Guard Rails

One of the hottest topics today is the accusations of some form of sex discrimination – which includes sexual harassment and sexual assault – related to employment. From the entertainment industry to media organizations, professional services firms, restaurants, venture capital firms, legislative bodies, and many others, the problem is widespread – but it is not new. It is just an age-old story with new players.

Lawyers are brought in after the allegations are made. Those burning allegations must be dealt with very quickly under the law. The intent is to contain the fire by creating legal closure which, in most cases, involves settling the subject claim(s) through release agreements that contain confidentiality agreements and non-disparagement clauses. With respect to  advice to prevent sexual harassment in the future, lawyers often recommend a myriad of actions including  installing new leaders, overhauling management, conducing outside legal reviews into unreported claims, creating employee advisory committees, updating sexual harassment policies, offering  more employee services, and providing more training and education to employees. Depending on whether the ultimate decision maker sincerely “walks this talk,” this all could be simple symbolic noise.

Setting aside the allegations and rumored settlements, the common threads are as follows: Continue reading »

Is a LinkedIn Offer to Connect a Violation of a Non-Solicitation/Anti-Raiding Agreement?

Today, marketing and sales are yoked through digital channels. Leads and customer relations are created and maintained on LinkedIn, Facebook, Twitter, Blogs, email, video calls, and chat rooms. Your salespeople use these tools to sell your products. Yet, change happens. Valuable salespeople with critical customer relationships and employee friendships will leave your company. Hopefully, when those employees leave your employ, you have non-competes and non-solicitation clauses in place which prohibit them from directly or indirectly soliciting employees or customers for a period of years after termination of employment.

You hear through the grapevine that your former super salesperson who just quit has an updated job status on LinkedIn. Now some of your employees and customers know where the former super salesperson is now employed. To add insult to injury, your former super salesperson has asked several of your employees to connect via LinkedIn. You are afraid of the Pied Piper effect and that more of your employees will leave you. Plus you paid good money for your lawyer to draft the darn non-solicitation agreement and you want your money’s worth!

How can you as an employer determine if your former salesperson is legally violating the non-solicitation agreement?

1. Passive solicitation. Is the activity passive and what is the content and substance of the message conveyed? Most courts that have considered this issue have found that an update to an individual’s LinkedIn account is passive. But what about a new request to connect?In Bankers Life and Casualty Company v. American Senior Benefits, Bankers Life sued a former sales manager for updating his LinkedIn account and asking three former co-workers – current employees of his former employer – to connect. Bankers Life argued that asking existing employees to connect was targeted and it would uncover job listings of current employer. The sales manager argued that the connection request was a LinkedIn generic email simply asking to form a professional networking connection on social media. The court noted that the generic emails did not contain any discussion of Bankers Life, no mention of the new employer, and no suggestion that a job description be reviewed. Further, current Bankers Life employees had a choice whether or not to respond and connect, click on the former co-worker’s profile, or review job postings for the salesperson’s new employer. Accordingly, the mere act of asking someone to connect on a social network via a generic email generated by the network itself did not violate the non-solicitation agreement. In Pre-Paid Legal Services v. Cahill, the court held that posting on Facebook that an employee has moved and touting the new employer’s product did not constitute evidence of unlawful solicitation.Courts have also ruled that posting a job opportunity on a LinkedIn is not a solicitation and becoming “friends” with former clients on Facebook does not in and of itself violate a non-compete clause (Enhanced Network Solutions Group, Inc. v. Hypersonic Technologies Corp and Invidia and LLC v. DiFonzo).

Continue reading »

Recent Illinois and Missouri Supreme Court Decisions Reduce Litigation Risks of Companies Operating in Multiple States

On September 21, 2017, the Illinois Supreme Court handed down its decision in Aspen American Insurance Company v. Interstate Warehousing, Inc, greatly limiting the ability of plaintiffs to sue foreign corporations in Illinois simply because the corporation is registered to do business in and may have minimal contacts with Illinois. As described below, the decision joins Illinois with a nationwide trend disfavoring forum-shopping – a practice in which plaintiffs bring suit against defendants in plaintiff-friendly venues unrelated to the defendant’s contacts and the injury giving rise to the action.

The Aspen case concerned a claim filed in Illinois by a plaintiff who had been injured in a fire which occurred in Indiana. The defendant corporation was incorporated in and maintained its principal place of business in Indiana, although it did maintain a warehouse in Illinois and was also registered to do business in Illinois. The defendant corporation moved to dismiss the lawsuit for lack of proper jurisdiction as a result of these facts and the Circuit Court agreed. On appeal, the plaintiff argued that maintenance of a warehouse in Illinois and being registered as a foreign corporation in Illinois was sufficient to impart general jurisdiction over the corporation. Continue reading »

Insurance Considerations

Part 9 of a 12-part series on Legal Considerations for Your Missouri Leasing Business: What You Should Consider Now, Later, and Throughout the Process

As a caveat to this discussion on insurance, we recommend that you consult with an independent insurance agent/broker to ensure that you obtain the most appropriate type and extent of insurance coverage that your specific business will need.

Having said that, there are some general insurance issues every residential or commercial leasing business should consider.

First, foremost, and fundamentally – don’t skip over insurance and do not assume your personal policies will cover your company’s property or operations.  Most personal policies do not cover businesses. Continue reading »

Working From Home as a Reasonable Accommodation Under the ADA: Credeur v. State of Louisiana

In today’s hyper-connected society, there are an increasing number of employers who have instituted policies permitting their employees to work from home in certain circumstances. The U.S. Court of Appeals for the Fifth Circuit, however, held that is not the case for litigation attorneys.  In-office attendance is an “essential duty” for a litigation attorney in the context of the American with Disabilities Act (ADA).”

Renee Credeur, a litigation attorney working in the Attorney General’s office in Louisiana was granted a temporary accommodation to work from home following a kidney transplant. After approximately six months, her supervisor denied her continuing request to work from home and Credeur filed a lawsuit alleging, among other claims, failure to accommodate under the ADA. The District Court for the Middle District of Louisiana granted summary judgment in favor of the Attorney General’s office and Credeur appealed. Continue reading »

EEOC: Discrimination Based on Sexual Orientation and Gender Identity is Prohibited

In its list of protections against discrimination, Title VII of the Civil Rights Act of 1964 does not explicitly include sexual orientation or gender identity. However, the Equal Employment Opportunity Commission (EEOC) interprets the statute’s sex discrimination provision as prohibiting discrimination against employees on the basis of sexual orientation and gender identity.

As its legal basis for concluding that sexual orientation and gender identity are covered by Title VII, the EEOC uses Supreme Court case Price Waterhouse v. Hopkins, which holds employment actions motivated by gender stereotyping are unlawful sex discrimination, along with more recent court decisions(Chavez v. Credit Nation Auto Sales, L.L.C.; Baker v. Aetna Life Ins., et al.; Fabian v. Hosp. of Central Conn; Lewis v. High Point Regional Health Sys.; Hively v. Ivy Tech Cmty. Coll. of Indiana). Although Congress has not amended Title VII to specifically include sexual orientation and gender identity as protected, the EEOC has applied existing Title VII precedents to sex discrimination claims raised by LGBT individuals. The EEOC states these protections apply regardless of any contrary state or local laws; however, the Missouri Court of Appeals appears unfazed. Continue reading »

When Bad Guys Attack Small to Mid-Sized Businesses: 20 Data Protection Tips

A cyber incident will happen to your company. It is not a matter of if, but when. Small businesses make an appealing target because hackers know they don’t spend as much on security as larger businesses and are not as careful.

According to a Towergate Insurance study, 82 percent of small business owners claim that they are not targets for attack because there is nothing worth stealing. However, employee personal data and health information and customer data are always worth stealing. Symantec reports that 43 percent of cyber-attacks worldwide in 2016 were against small businesses with less than 250 workers. In fact, cyber crooks try to rob bank accounts via wire transfers, steal customers’ personal identify information, file fraudulent tax returns, commit Medicare fraud, etc.

IBM estimates that nearly two-thirds of all cyber-attacks hit small to mid-sized businesses. More disturbing, the U.S. National Cyber Security Alliance estimates that about 60 percent of those hit are forced to close six months after an attack. A 2016 Poneman Institute Breach Report advises that the average price a small business has to pay after a cyber attack is about $690,000.

According to the 2017 Verizon Data Breach Investigations Report:

• 75 percent of the breaches were perpetrated by outsiders (with 51 percent involving organized criminal groups) and the remaining involved internal actors.
• 62 percent of the breaches involved hacking
• 81 percent of breaches involving hacking leveraged stolen and/or weak passwords
• Not surprising, malware installed via malicious email attachments was present in 50 percent of the breaches involving hacking
• The victims of data breaches are:
  • Financial organizations (24 percent)
  • Health care organizations (15 percent)
  • Public sector entities (12 percent)
  • Retail and accommodations (15 percent)
• One in 14 users are tricked into following a link or opening an attachment with 25 percent of the users making the same mistake twice

It’s all about the money: Perpetrators of data breaches steal and exploit sensitive data for financial gain. They are opportunistic, using phishing to poke for weak points to use as entry points. Phishing, the most common tool, involves collecting sensitive information like login credentials and credit card information through legitimate-looking but fraudulent websites. Ninety-five percent of phishing attacks led to a breach that was followed by the installation of some sort of malicious software (malware).

Small to mid-sized businesses can take preventive steps to minimize damage. Here are 20 tactics to employ to protect your data. Continue reading »

Observing Corporate Formalities

Part 8 of a 12-part series on Legal Considerations for Your Missouri Leasing Business: What You Should Consider Now, Later, and Throughout the Process

It is absolutely critical to keep in mind at all times that your limited liability company or corporation is not an alter ego or simply an extension of yourself. The entity’s bank account cannot be used as your personal bank account, you should not use the entity’s  money to cover personal debts, and, in general, your personal assets should not be relied on to continually cover your entity’s debts. This is true even if you are the sole member or shareholder. The entity is and must be treated as a separate “person” from yourself, with its own assets, activities, and representations.

Keeping that distance is often referred to as observing corporate formalities. Failing to do so can remove the very asset protections that your legal entity was designed to impart. Each business model is different and all necessary formalities cannot be listed for each company, but below are some general guidelines for observing the necessary formalities. Continue reading »