You are here: Home » Legal Links » News & Noteworthy

Frivolous lawsuit or legitimate breach of contract claim?

December 11, 2011 By Lori Strobl Leave a Comment

Two years ago a young newlywed couple were at home unaware that a man on the run from the police was about to turn their world upside down. Jesse Dimmick, wanted in connection with a homicide in Colorado, led police on a chase that ended in Dover when his vehicle was disabled. He fled on foot and entered the home of a young couple. According to the couple, Mr. Dimmick brandished a knife and asked the couple to hide him from the police who were trying to kill him. Dimmick promised to pay the couple to hide him. The couple gained Mr. Dimmick’s trust and when Dimmick fell asleep the couple escaped and went to the police.

While the police were apprehending Dimmick, a rifle accidentally discharged and Dimmick suffered a gunshot wound to the back. Dimmick filed a lawsuit against the city for his injuries. The couple then filed a suit against Dimmick for trespass, intrusion and negligent infliction of emotional distress seeking damages in the same amount as Dimmick sought from the city in his Complaint. Dimmick’s response to the couple’s complaint was to file a counterclaim for breach of contract and act as his own legal counsel.

According to Dimmick, he and the couple entered into an oral contract in which he would pay them an unspecified amount in exchange for the couple’s act of hiding Dimmick from the police.

In order for a contract to be valid, there must be a meeting of the minds. Both parties have to agree of their own free will to the conditions of the contract. Likewise the basis of the contract must be legal and any monies to be exchanged need to be specified in the contract.

According to the couple’s attorney, Dimmick brandished a knife when making his request to be hidden in exchange for money so if any agreement had been made it would have been made under duress. Additionally, the amount of money was never specified and hiding a fugitive from the police is illegal so any contract arising from that would be invalid.

The majority of comments posted online regarding an article on this case called Dimmick’s suit frivolous. The judge will determine whether that is the case.

While acting as one’s own counsel may seem to save money in the short term, it is not always a wise course of action. There is some truth to the adage “a person who represents himself has a fool for a client.”

Knowing one’s limitations and seeking professional legal counsel can actually save money and time in the long run.

http://cjonline.com/opinion/2011-11-29/editorial-lawsuit-goes-beyond-frivolous

 As with any rule, there are exceptions.   

Please seek professional assistance with any questions or specific situations. 

 ADVERTISING MATERIAL ONLY: If you need legal services, please seek professional counsel.

Filed Under breach of contract, Uncategorized Tagged With breach of contract, duress, frivolous lawsuit

FREEDOM OF SPEECH/PRIVACY AND THE PUBLIC GOOD

November 20, 2011 By Lori Strobl Leave a Comment

FREEDOM OF SPEECH/PRIVACY AND THE PUBLIC GOOD: Social media is not the private forum the majority of its users think it is.

The majority of Facebook, Myspace and internet dating users view such sites as a private forums in which the content is protected by freedom of speech. That is not the case.

Employers are not the only entities scouring such sites for possible misdeeds. Courts are looking at such sites to determine the fitness of parents in family law cases. One court in Connecticut ordered a couple to turn over their passwords to their Facebook and other online account passwords in a family law case. The husband had asserted that his wife had posted some incriminating information regarding her feelings about her children. The court ordered the wife to also turn over her online dating account passwords.

According to the American Academy of Matrimonial lawyers, “80% of divorce cases included social media posts”. Police, prosecutors and insurance companies have also jumped on the bandwagon so to speak. Internet sites are being mined for evidence of crimes and fraud and many lawyers are searching sites in order to assist in determining jury selection.

The old adage “never commit anything incriminating to paper” may need to be changed to include internet posts. While internet sites may claim that its site has privacy protections in place so that only select individuals may view one’s information or posts, such protections only go so far. Inevitably information posted gets around to others outside of one’s select “friends” circle and shared with individuals one may not want to have such information subjecting one to less than pleasant consequences.

Many users of such social media sites may view the actions of the courts, lawyers, employers and other entities as a violation of privacy and freedom of speech, but others view such actions as necessary and relevant means to protect the public good. What is certain is that internet mining will be an issue that the courts will continue to “wrestle with in future.”

http://www.forbes.com/sites/mobiledia/2011/11/14/facebook-passwords-must-be-shared-in-divorce-case/      

As with any rule, there are exceptions.

Please seek professional assistance with any questions or specific situations. 

 ADVERTISING MATERIAL ONLY: If you need legal services, please seek professional counsel.

Filed Under Employment, First Amendment, internet mining, privacy, social media Tagged With Facebook, Freedom of speech, internet, myspace, privacy

STATUS BLIND HARASSMENT LAWS

November 6, 2011 By Lori Strobl Leave a Comment

STATUS BLIND HARASSMENT LAWS: The Healthy Workplace Bill from inception to current legislation.

In 2001 the campaign to garner support for anti bullying laws in multiple states thanks to a Suffolk University Professor of Law, David Yamada. Mr. Yamada wrote several papers on workplace bullying and drafted the text of the Healthy Workplace Bill first introduced in California in 2003. Since the first draft of the bill was introduced, 20 other states have introduced similar legislation. Currently, 16 bills are active in 11 states.

The United States is the last of the western democratic nations to introduce legislation to prohibit workplace bullying. The following countries have forms of anti bullying laws to prevent or correct harassment in the workplace: Sweden, Britain, France, Ireland, Australia and Canada.

The premise of the bill is to provide legal recourse for employees who do not fall into the current protected classes under Title VII, namely: race, religion, sex, age, nationality. According to the official website for the Healthy Workplace Bill, the following points describe the need for such legislation and what the bill can do for employers and employees:

What the HWB Does for Employers

■Precisely defines an “abusive work environment” — it is a high standard for misconduct

■Requires proof of health harm by licensed health or mental health professionals

■Protects conscientious employers from vicarious liability risk when internal

correction and prevention mechanisms are in effect

■Gives employers the reason to terminate or sanction offenders

■Requires plaintiffs to use private attorneys

■Plugs the gaps in current state and federal civil rights protections

 What the HWB Does for Workers

■Provides an avenue for legal redress for health harming cruelty at work

■Allows you to sue the bully as an individual

■Holds the employer accountable

■Seeks restoration of lost wages and benefits

■Compels employers to prevent and correct future instances

 What the HWB Does Not Do

■Involve state agencies to enforce any provisions of the law

■Incur costs for adopting states

■Require plaintiffs to be members of protected status groups (it is “status-blind”)

■Use the term “workplace bullying”

No state has enacted the bill as of yet, but its supporters are optimistic that it will be signed into law in the not so distant future.

 http://www.healthyworkplacebill.org/bill.php

As with any rule, there are exceptions.   

Please seek professional assistance with any questions or specific situations. 

 ADVERTISING MATERIAL ONLY: If you need legal services, please seek professional counsel.

Filed Under Uncategorized

ELECTRONIC SERVICE OF PROCESS: Is the use of Social Media the new means for process of service?

October 12, 2011 By Lori Strobl Leave a Comment

ELECTRONIC SERVICE OF PROCESS: Is the use of Social Media the new means for process of service?

The methods for service of process may need to be updated according to one state judge. A Minnesota judge presiding over a domestic relations case thought that general delivery would be a waste of postage as the defendant was out of the country and there was no known address for the defendant. The judge ordered Plaintiff to serve notice to her husband via email, “Facebook, MySpace or any other social networking site.”

The judge stated “General delivery made sense 100 years ago, but let’s be real…Nobody, particularly poor people, is going to look at the legal newspaper to notice that their spouse wants to get divorced.” He further went on to say “The traditional way to get service by publication is antiquated and is prohibitively expensive…Service is critical, and technology provides a cheaper and hopefully more effective way of finding respondent.”

Other courts in Australia, Canada, New Zealand and the U.K. allow electronic service, but as of yet the United States has not followed suit in many of its state and federal courts.

While there are now numerous avenues for electronic service such as email, phone texts, and social media sites, few can agree on how this form of service should be implemented. There is no real guarantee that an email has been received unless a read receipt was attached to the email. Many emails could inadvertently be sent to one’s junk mail file. As far as social media sites are concerned, there is no guarantee that the person the notice was sent to is the person that has access to the account. Service would also be difficult in cases where the person to be notified has a common name. There could literally be hundreds or more profiles with that name. Likewise, cell phone texts present the problem of who has access to the messages and there is no guarantee that the message was received.

Another problem with electronic service is that many low-income families do not have access to computers in order to receive such service. So, until a uniform plan for implementation of electronic service of process is put into place, it would seem that traditional service of process will remain the norm. 

As with any rule, there are exceptions.   

Please seek professional assistance with any questions or specific situations. 

ADVERTISING MATERIAL ONLY: If you need legal services, please seek professional counsel.

 

Filed Under Litigation, Service of Process Tagged With electronic service, litigation, notification, service of process

Title VII Damages per party or per claim?

October 7, 2011 By Lori Strobl Leave a Comment

EMPLOYMENT: Title VII Damages per party or per claim?

The issue as to whether the cap on damages applied per party or per claim was answered in a Fifth Circuit decision in Black v. Pan American Laboratories, LLC, No. 09-51092 (5th Cir. July 11, 2011). The court held that the cap applied per party; a decision that is in line with holdings in the Sixth, Seventh, and Tenth Circuit as well as that of the D.C. Court of Appeals. The reasoning for such a ruling was to prevent “double recovery” in discrimination cases.

The cap for damages is as follows: (1) $50,000 for employers with fewer than 101 employees, (2) $100,000 for employers with fewer than 201 employees, (3) $200,000 for employers with fewer than 501 employees and (4) $300,000 for employers with over 500 employees.

The statutory cap was enacted by Congress in 1991 and can be found at 42 U.S.C. §1891a. The statute based the cap on the number of employees of the defendant employer. This statute overturned more restrictive rulings of the Supreme Court and allowed an employee to recover not only backpay, but compensatory and punitive damages as well.

While the cap seems to benefit employers more so than its employees, it still provides greater damage recovery than was possible prior to the 1991 as an employee can now recover damages for claims such as mental anguish, pain and suffering, and future losses whether pecuniary or non-pecuniary.

As with any rule, there are exceptions.   

Please seek professional assistance with any questions or specific situations. 

ADVERTISING MATERIAL ONLY: If you need legal services, please seek professional counsel.

Filed Under Discrimination, Employment Tagged With damages, discrimination, employment, Title VII

SOCIAL MEDIA AND EMPLOYMENT

September 21, 2011 By Lori Strobl Leave a Comment

SOCIAL MEDIA AND EMPLOYMENT: The emerging legal issue regarding social media usage and employee rights has led to new guidelines by the NLRB as to what is protected social media conduct.

In this day and age social networking is widespread and far reaching. A staggering number of this nation’s workforce is active on at least one social networking site. Because of the popularity of social networking and the potential for marketing to vast numbers of customers more and more businesses are taking out advertising space on such sites and/or developing pages inviting potential customers to make comments and share its content with others.

Considering the sheer volume of employees actively utilizing social media for posting random comments (some of which reflects the employee’s opinions regarding his or her employer) and the vast number of employers utilizing the same media for marketing and advertising, it was inevitable that the two parties would clash. This is evidenced by the rising number of employee terminations based on comments and/or pictures allegedly casting his or her employer in a negative light posted on such public forums.

The first Facebook firing case to come before the National Labor Relations Board was decided on September 2, 2011 by an Administrative Law Judge. In its decision, the judge mandated that the notice attached to the NLRB’s decision be posted for 60 consecutive days in conspicuous places on the employer’s premises. Additionally, the employer was ordered to post the notice electronically in whatever form it regularly communicates with its employees.

The following excerpt of the notice lists the employee’s rights with regards to social media conduct:

“FEDERAL LAW GIVES YOU THE RIGHT TO

Form, join, or assist a union

Choose representatives to bargain with us on your behalf

Act together with other employees for your benefit and protection

Choose not to engage in any of these protected activities.

WE WILL NOT discharge or otherwise discriminate against any of you for engaging in protected concerted activity, including discussing amongst yourselves your wages, hours and other terms and conditions of your employment, including criticisms by coworkers of your work performance.

 WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act.”

 Hispanics United of Buffalo, Inc. v. Ortiz, (Sept. 2, 2011) Case No. 3-CA-27872.

Social media has permeated the workplace. The plethora of litigation it has produced and will continue to produce is staggering. The law must keep up with advancing technology and future rulings on social media usage will dictate how the courts will weigh the rights of employees against the rights of employers.

 As with any rule, there are exceptions.   

Please seek professional assistance with any questions or specific situations. 

 ADVERTISING MATERIAL ONLY: If you need legal services, please seek professional counsel.

Filed Under Employment Tagged With employment, Facebook, Freedom of speech, NLRB, social media, union

Social Media and Freedom of Speech

September 16, 2011 By Lori Strobl Leave a Comment

FREEDOM OF SPEECH: Missouri Senate revises law banning teachers from communicating with students through social networking sites.

A law was passed earlier this year in the State of Missouri which banned teachers from communicating with current and former students under the age of 18 via social networking sites such as Facebook. A law suit brought by the Missouri Teachers Association and numerous public school teachers who claimed that this law infringed upon their freedom of speech prompted a Missouri judge to block the law from taking effect.

The judge stated that the law as it stood would restrict communications between family members in which a parent is also a teacher. The judge prohibited the enforcement of the law and specified that any teachers engaging in such communications during the injunction could not be found in violation of the law even if the injunction is overturned. 

Keep in mind that the injunction was for only a particular section of the law. Many sections of the law were upheld in the above referenced law known as the Facebook Law. The section regarding the sharing of information between school districts with regards to teachers who have sexually abused students was unchallenged and will stand. Likewise, lawsuits will still be permissible in cases where school districts fail to share such information.

According to Associated Press correspondent David Lieb, another provision of the law which will stand is the section which requires the work-related internet sites of teachers be made available to administrators, parents and legal guardians. Additionally, schools are required to develop written policies regarding oral and electronic communications between teachers and students by January 2012.

On September 14, 2011 the Missouri Senate unanimously approved a revision to the Facebook Law. The bill removed the provision which prohibited private online communications between teachers and students. The bill requires that school districts develop its own policies regarding communications between teachers and students and must include the regulation of electronic media within its policies to prevent impropriety. According to the bill, the policies need to be developed by March 1, 2012.

Numerous teachers associations and school board associations have come out in support of the bill which is now headed to the House of Representatives.           

As with any rule, there are exceptions.   

Please seek professional assistance with any questions or specific situations. 

ADVERTISING MATERIAL ONLY: If you need legal services, please seek professional counsel.

Filed Under First Amendment Tagged With Facebook, Freedom of speech, social media

The U.S. Supreme Court’s decision regarding the citizenship of children born out of wedlock raises issues regarding gender discrimination.

September 7, 2011 By Lori Strobl Leave a Comment

A recent U.S. Supreme Court ruling upheld the Ninth Circuit’s opinion that unwed American males who father children with a non-U.S. citizen must meet a higher criterion in order to pass on his citizenship to his child if the child is born outside of the U.S. than that of an unwed American female.

According to United States v. Flores-Villar, 536 F.3d 990 (9th Cir. 2008) an unwed American female must have been a resident of the U.S. for only one year prior to the birth of her child in order to pass on her U.S. citizenship to her child born outside of the U.S. and fathered by a non-U.S. citizen. In contrast, an unwed American male must have been a resident of the U.S. for ten years prior to the birth of the child (five of the years after the age of fourteen), prove paternity, and pledge support to the child in order to pass on his U.S. citizenship to his child born outside of the U.S. to a non-U.S. citizen.

This ruling has many crying foul, alleging gender discrimination. The Supreme Court Justices were divided on this case and according to the New York Times the decision would have been different had recused Justice Kagan taken part in the decision.

The Court determined that mothers and fathers are not similarly situated with regards to the biological relationship between parent and child. The Court held that the parent-child relationship is “verifiable from the birth itself in the case of the mother, while a father’s biological relationship to the child is not so easily established.” Id at 995. Secondly, the citizen parent and the child need to have the opportunity to have ties through day to day contact in order to meaningful connection to one another and in turn a connection to the U.S.

Because a mother is obviously aware of the child during pregnancy and has immediate contact with the child from birth, the Court found that the mother has a greater opportunity to develop a meaningful relationship with the child. Whereas the same is not always true with regards to the father. The Court goes on to state that another reason for the more stringent requirements for fathers is to avoid “stateless children”. “The residence differential is directly related to statelessness; the one-year period applicable to unwed citizen mothers seeks to insure that the child will have a nationality at birth.” Id at 997.

As to the avoidance of statelessness and the assurance of a meaningful link between an unwed American father, the U.S. and the child born abroad, the Court determined “The means chosen substantially further the objectives.” In other words, the legislation providing differing residency requirements is valid so long as the statutory classification is “rationally related to a legitimate state interest.”

As with any rule, there are exceptions.   

Please seek professional assistance with any questions or specific situations. 

ADVERTISING MATERIAL ONLY: If you need legal services, please seek professional counsel.

Filed Under Immigration Tagged With Citizenship

Welcome to Our New Website!

August 29, 2011 By Lori Strobl Leave a Comment

Welcome to the Strobl & Associates Co., LPA website.

Our website has undergone dramatic changes in order to provide current, former and potential clients with a more user friendly and informative means of internet communication.

The website now offers a link to PayPal through which payments can be made for legal services. Additionally, the new site provides a more detailed listing of the firm’s areas of practice including definitions and examples for each area. The new configuration of the website also allows easier navigation to links both internal and external to the site.

The News and Noteworthy section of the website will provide new and interesting developments in the legal community and offer information regarding who may be affected by such developments. The law is constantly changing and adapting and our focus in this section is to provide up to date information regarding emerging issues in the law.

Filed Under General Tagged With blog, news, paypal
Newer Posts »