Use Of Credit Reports In Employment Decisions
Restricted Under New California Law
California Governor Jerry Brown recently signed into law AB 22
. As we reported last week, AB 22 was among a slew of new
bills impacting business that the Governor signed as the
deadline for doing so approached.
AB 22 restricts the ability of California employers to use
credit reports when making employment decisions, including
but not limited to hiring decisions. However, several exceptions are built into the
legislation, which permit businesses to do credit checks if the position at issue,
among other things, is:
1. Managerial
2. Law enforcement
3. Involves regular access to $10,000 in cash or more
4. Involves regular access to the bank and credit card info, date of birth and Social
Security Number of at least one person
5. Involves access to confidential or proprietary information that is of value and
subject to reasonable efforts to maintain its secrecy
Under existing Federal law, employers are required to obtain the written consent
of an employee or applicant before obtaining their credit report, and notify the
employee/applicant if any adverse employment action is taken as a result.
Credit reporting agencies and business group opposed the new California law,
arguing that businesses need the information in credit reports to help make informed
decisions about employees and applicants.
Consumer groups and others supported the bill, even though they wanted fewer
exceptions, viewing it as a positive development because it places new restrictions
on the use of credit reports in hiring and other employment decisions.
Contact Schein & Cai for all of your employment law needs. Our attorneys have
handled a variety of employment law disputes with great success and client
satisfaction. We offer a free initial consultation.
Find us at www.sacattorneys.com.
Mobile Internet Conference Roadshow
We highlight one event this week in our continuing coverage of
high tech meetings and conferences in the Silicon Valley and
San Francisco areas.
It’s the GMIC Roadshow: Meet with Tech Leaders From China. It
takes place November 8, 2011 from 5:30 pm to 9:30 pm at
Stanford University in Palo Alto.
A buffet diner and exhibition start the evening, followed by panel discussions and
presentations.
Lei Jun, CEO, Xiaomi – China’s most famous angel investor and CEO of
China’s “most ambitious startup”
Wang Jian, CTO, Alibaba – The world’s largest online B2B trading platform for small
businesses
Jeff Xiong, CTO, Tencent – The third largest internet company in the world – IPO’d in
Hong Kong
Michael Song, CEO, Skymobi – China’s largest Android marketplace and recently
IPO’d in the US
Yu Lin, CEO, Netqin – China’s largest mobile security company and recently IPO’d in
the US
Liu Shuang, CEO, iFeng (Phoenix New Media) – Internet and mobile portal and
recently IPO’d in the US
Yu Yongfu, CEO, UC Web – China’s largest mobile browser and expecting to IPO in
the US this year
Joe Wu, CFO, Netdragon – Top internet and mobile gaming company – IPO’d in Hong
Kong in 2007
Sheng Bi, CEO, Letao – Top apparel eCommerce company
Wenchu, CEO, GWC – producer of The Global Mobile Internet Conference (GMIC)
Barrett Parkman, VP, GWC – producer of The Global Mobile Internet Conference
(GMIC)
For details click HERE.
Schein & Cai LLP, focused business and intellectual property law firm advising
startups in the Silicon Valley and beyond, including San Jose, Santa Clara, Mountain
View, Sunnyvale, Morgan Hill, Oakland, San Francisco, Palo Alto, San Mateo, Santa
Cruz, South San Francisco, Daly City, Cupertino, Saratoga and Emeryville.
Disclaimer: Schein & Cai does not endorse any event featured on this blog. Listings
are included as a convenience for the readers. Readers should investigate each event
and determine if it is right for them.
California Real Estate Brokers And Fictitious Business Names
Real estate brokers in California can operate under a fictitious
business name only if they have received license approval to
use the name from the Department of Real Estate (DRE).
Thus, an individual or corporation licensed as a real estate
broker cannot begin to use a dba in connection with their real
estate activities simply because they file and receive approval
to use such from the County Clerk or Recorder’s office. Real
estate brokers in California must take the extra step of
obtaining license approval to use the name from the DRE as
well.
Real estate salespersons may not use a fictitious business
name. Only real estate brokers and corporate licensees can do so, after approval
from the DRE.
Fictitious business names that are misleading or contrary to state law will not be
approved. As stated in the DRE’s Fall 2011 Real Estate Bulletin, this includes, among
others, dba’s which:
1. Are conducted by or include the words “limited liability company” or “LLC” ;
2. Are conducted by a corporation, if the broker is an individual;
3. Imply a corporation or partnership when one does not exist;
4. Contain words such as bank, banker, savings association, or trust company
without a letter of authorization from the Department of Financial Institutions;
5. Contain a word such as “insurance” without a letter of authorization from the
Department of Insurance;
6. Contain the word “escrow” or any name which implies that escrow services are
provided without the term “a non-independent broker escrow” following the fictitious
business name;
7. Contain words which imply or closely mirror the name of a federal agency without
a letter of authorization from the particular agency; and/or
8. Contain misleading names or names which constitute or may constitute false
advertising.
Schein & Cai handles real estate disputes, including arbitration and litigation arising
out of real estate transactions, agent and broker relationships and landlord/tenant
matters.
Find us at www.sacattorneys.com
Real Estate Deal Goes Sour For Muhammad Ali
Muhammad Ali and his wife Yolanda are suing the couple that
sold them a Louisville mansion in 2006 for a reported $1.87
million. As many know, the former boxing champ and living
legend used to float like a butterfly and sting like a bee. Now he’s
arguing that he and his wife were stung when they purchased
the home which, according to one report about the lawsuit,
included “roof and chimney leaks, mold, poor insulation and
improper connection of a main waterline.”
Other news reports indicate that the selling couple was surprised
by the lawsuit. Since several years have passed since the sale
took place, this seems understandable, unless the record ends up
showing that the Ali’s had been in contact with the sellers about
problems for some time.
In their lawsuit, the Ali’s claim the house was sold with undisclosed problems.
According to news reports, the sellers claim that a standard real estate purchase
contract was used for the deal and the Ali’s had the opportunity to have the house
inspected prior to close. It’s unclear from news reports whether an inspection took
place.
When buying a home, a house inspection is absolutely crucial. Don’t move forward
without one.
Schein & Cai handles real estate disputes, including arbitration and litigation arising
out of real estate transactions, agent and broker relationships and landlord/tenant
matters.
Find us at www.sacattorneys.com
New Form Of Corporate Entity Approved In California:
Meet The Benefit Corporation
Governor Brown recently signed AB 361 which authorizes the creation
of a new form of corporate entity in California known as a benefit
corporation. Previously general corporations and non-profit companies
represented the two ends of the corporate spectrum, with general
corporations acting as for-profit enterprises answerable to
shareholders, and non-profits created for public benefit, mutual
benefit or religious purposes.
The new benefit corporation, organized under the general corporations law, would
be a for-profit company but one formed for the purpose of creating general public
benefit. “General public benefit means a material positive impact on society and the
environment.” Cal. Corp. Code 14600(c)
Benefit corporations may also specify a specific public benefit in their articles of
incorporation. Section 14600(e) of the Corporations Code states that a specific public
benefits can include:
(1) Providing low-income or underserved individuals or communities with beneficial
products or services.
(2) Promoting economic opportunity for individuals or communities beyond the
creation of jobs in the ordinary course of business.
(3) Preserving the environment.
(4) Improving human health.
(5) Promoting the arts, sciences, or advancement of knowledge.
(6) Increasing the flow of capital to entities with a public benefit purpose.
(7) The accomplishment of any other particular benefit for society
Due to the nature of benefit corporations, directors of such companies have a duty
to consider the impact of any decision not only on shareholders but, among other
things, on employees, customers, the community and the environment. Cal. Corp.
Code 14620(b)
Schein & Cai can help you determine whether to incorporate, create a benefit
corporation, form an LLC or other entity for your business and help ensure
that corporate formalities are followed on an ongoing basis. Call us for a free
consultation.
Find us at www.sacattorneys.com.
Intel Trademark Enforcement On The Rise
Intel, the world’s largest computer chip maker whose
microprocessors can be found in personal computers and
other products worldwide, has been active lately in
attempting to enforce its trademarks. Like many
successful companies, Intel spends substantial sums to do
so. According to one report, earlier this year the Company
asked the WIPO Arbitration and Mediation Center to cancel or transfer fifteen
domain names that included the “Pentium” mark.
Trademark law generally protects a mark holder against infringement only if the
allegedly infringing mark is identical to or confusingly similar to the mark in question.
The owner of a trademark that is famous can also sue for trademark dilution in
cases where there may not be confusion as to the source of goods or services but
the use nonetheless dilutes the strength of the well-known mark through blurring or
tarnishment.
Recently, Intel sued Intelspec, a construction and engineering company based
in Utah for trademark infringement and dilution based on the Intelspec name
and domain (www.intelspec.com). In order to make its case that Intelspec is an
infringing mark, Intel alleged that Intelspec is confusingly similar to Intel.
The hurdle Intel faces with respect to its infringement claim is that Intelspec is in
a different business. It’s a construction and engineering firm, not a chip maker or
computer company. This lessens the likelihood of confusion in the market as to the
source of its goods and services.
Still, Intel is making its case. According to the Complaint, the crux of Intel’s lawsuit
with respect to the infringement claim is as follows:
“[C]ommunications infrastructure for public and private entities” is a “primary focus”
of Intelspec’s business and “[g]iven Intel’s involvement in communications, the
vast use of Intel’s products and services by the military and in other engineering
applications, and the similarity of the marks, there is a likelihood that those
customers will attribute the quality and content of Defendant’s offerings to Intel.”
Some see this as a stretch. But one thing is certain. When a corporate giant is
protecting its trademarks, sometimes smaller companies, even those in different
industries, end up in their target.
Schein & Cai LLP, focused business and intellectual property law firm advising
startups in the Silicon Valley and beyond, including San Jose, Santa Clara, Mountain
View, Sunnyvale, Morgan Hill, Oakland, San Francisco, Palo Alto, San Mateo, Santa
Cruz, South San Francisco, Daly City, Cupertino, Saratoga and Emeryville.
Find Schein & Cai at http://www.sacattorneys.com/.
UCLA Defeats Copyright Infringement Claim
Using Sovereign Immunity
An educational video producer licensed a DVD titled “The Plays Of
William Shakespeare” to the University of California Los Angeles
(UCLA). After UCLA copied and reformatted the DVD, and placed
it on the Internet so students and faculty could view it from
remote locations, the video producer sued the UCLA Regents and
various University officials.
The complaint set forth several theories of liability. But the US
District Court for the Central District of California shot down every one of them in a
decision dated October 3, 2011, granting the Defendants Motion To Dismiss.
Of special interest was the claim for copyright infringement. One might think that
fair use under US Copyright Law came into play, but the Court actually dismissed the
copyright claim based on sovereign immunity. The principle of sovereign immunity is
found in the Eleventh Amendment to the US Constitution which states:
“The Judicial power of the United States shall not be construed to extend to any
suit in law or equity, commenced or prosecuted against one of the United States by
Citizens of another State, or by Citizens or Subjects of any Foreign State.”
Based on the Eleventh Amendment, Courts have held that lawsuits by citizens
against States, for money damages or equitable relief, cannot be brought in Federal
courts without the State’s consent.
Because the Regents of UCLA is an arm of the State, sovereign immunity came into
play. The court held that the Defendants did not waive sovereign immunity as part
of their agreement with the video producer, and noted that Courts have held the
Copyright Act does not validly waive sovereign immunity either.
Schein & Cai can advise you with respect to all copyright matters. We assist
companies in Silicon Valley and beyond, including San Jose, Santa Clara, Mountain
View, Sunnyvale, Morgan Hill, Oakland, San Francisco, Palo Alto, San Mateo, Santa
Cruz, South San Francisco, Daly City, Cupertino, Saratoga and Emeryville.
Find Schein & Cai at www.sacattorneys.com.
Religious Music Scheme At Center Of Investment Fraud
The latest investment fraud reported by the Orange County Register
involves a woman purporting to do the Lord’s work, who took the
people’s money instead.
A Downey, California businesswoman enticed investors with a dual
pitch. First, she would use their money to finance a Christian
music “Battle Of The Bands”. Second, she would invest in residential
properties for resale. What one has to do with the other remains unclear. Perhaps a
Christian music concert was the emotional hook to bring investors in, while
refurbishing and reselling real estate was the business hook to satisfy those
concerned about the mercurial nature of the music business. Bottom line, it was a
pitch to make money and spread The Word. A potent combination.
Potent indeed. Enough to raise over $990,000 from investors. Unfortunately,
the “Battle Of The Bands” never materialized. But much of the money did the
opposite, vanishing from investor accounts, used by the woman at the center of
the alleged fraud for mundane personal purposes like rent, car payments and her
daughter’s private school tuition.
In what may be described as a charitable action by Federal prosecutors, the woman
seems to have gotten off relatively light, pleading guilty to a single wire fraud charge
involving less than $4000. Still, she has agreed to repay almost $560,000 lost by her
investors.
It’s interesting to note that the woman involved in the case also admitted in her plea
agreement that she was convicted of securities fraud in 1999. This once again points
out the importance of investigating people who are asking you to invest your money,
before you part with it.
Schein & Cai handles investment fraud litigation. Contact us for a free consultation.
Find us on the web at www.sacattorneys.com.
Oracle Stung By Most Favored Nations Clause
Oracle has agreed to pay Uncle Sam almost $200 million in a
settlement related to the prices that it charged the Federal
Government for its products. The dispute came to light after a
former employee of Oracle filed suit against the company under
the False Claims Act, alleging that the Company had defrauded
According to a recent news report, the crux of the case seems to be a provision
in the contract between Oracle and the Federal Government which guaranteed
the Feds discounts from agreed-upon prices if Oracle offered steeper discounts to
other purchasers. Provisions which grant this type of price protection are commonly
referred to as “most favored nations clauses”. The Federal Government, because
of its size, power and contracting guidelines, often demands such from commercial
vendors.
Whenever a business negotiates to purchase goods or services it is worth trying
to include a most favored nations clause in the deal. Whether this is possible will
depend on bargaining power, confidentiality and other factors.
When such provisions become part of an agreement, the devil is often in the details.
In most cases, the seller, which offers lower prices to another purchaser, is obligated
to disclose this to the prior purchaser. However, monitoring other deals so you
can report back to prior purchasers and give them refunds, or charge them less is,
understandably, not high on most company to-do-lists.
Sometimes the difference between compliance and oversight (or intentional
misconduct) comes down to a disgruntled employee or whistleblower.
That’s what happened in the case of Oracle, and the end result is a hefty settlement
to be shared by the Federal Government and the whistleblower whose lawsuit
brought the facts to light.
Schein & Cai is a law firm that works proactively with business clients to lessen
the risk of disputes, but can litigate when necessary. We can also help you solve
problems quickly and efficiently through litigation alternatives such as negotiation,
mediation and arbitration.
Find us at www.sacattorneys.com.
California Real Estate Brokers And Fictitious Business Names
Real estate brokers in California can operate under a fictitious
business name only if they have received license approval to
use the name from the Department of Real Estate (DRE).
Thus, an individual or corporation licensed as a real estate
broker cannot begin to use a dba in connection with their real
estate activities simply because they file and receive approval
to use such from the County Clerk or Recorder’s office. Real
estate brokers in California must take the extra step of
obtaining license approval to use the name from the DRE as
well.
Real estate salespersons may not use a fictitious business
name. Only real estate brokers and corporate licensees can do so, after approval
from the DRE.
Fictitious business names that are misleading or contrary to state law will not be
approved. As stated in the DRE’s Fall 2011 Real Estate Bulletin, this includes, among
others, dba’s which:
1. Are conducted by or include the words “limited liability company” or “LLC” ;
2. Are conducted by a corporation, if the broker is an individual;
3. Imply a corporation or partnership when one does not exist;
4. Contain words such as bank, banker, savings association, or trust company
without a letter of authorization from the Department of Financial Institutions;
5. Contain a word such as “insurance” without a letter of authorization from the
Department of Insurance;
6. Contain the word “escrow” or any name which implies that escrow services are
provided without the term “a non-independent broker escrow” following the fictitious
business name;
7. Contain words which imply or closely mirror the name of a federal agency without
a letter of authorization from the particular agency; and/or
8. Contain misleading names or names which constitute or may constitute false
advertising.
Schein & Cai handles real estate disputes, including arbitration and litigation arising
out of real estate transactions, agent and broker relationships and landlord/tenant
matters.
Find us at www.sacattorneys.com