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

The deadline was Sunday October 9, 2011 for Governor Jerry
Brown to sign into law or veto a slew of legislation that had
passed the California legislature and was sitting on his desk.
Many of the bills he signed at the last minute impact business
owners in California and their employees. The topics covered
include a wide range of subjects this blog may address individual bills in the coming
weeks.

According to one report, the bills signed into law address, among other things:

Extension of tax credits for film production (AB 1069)
Employment credit reports (AB 22)
Farm labor contractors (AB 243)
Hiring practices and electronic employment verification (AB 1236)
Independent contractors (SB 459)
Health insurance discrimination re domestic partners(SB757)
Workers compensation (AB 335, AB 378, AB 397, etc.)

Bills vetoed by the Governor address, among other things:

Payment of employee wages by a payroll card (SB 931)
Voiding provisions in employment contracts that makes the law or jurisdiction of
states other than California mandatory (AB 267)
Bereavement leave (AB 325)
Workers compensation (AB 211, AB 584, AB 947, AB 1155)

You can find details on these and other California Assembly Bills and Senate Bills
here.

Schein & Cai can handle 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.

Real Estate Agents May Be Subject To Minimum Wage And Overtime In California

The California State Labor Commissioner has sued ZipRealty for $17 milli after a Superior Court Judge in Kern County awarded more than $330,000 in unpaid wages to four real estate agents who formerly worked for the company.

The Labor Commissioner contends that hundreds of ZipRealty agents were not paid minimum wage or overtime for hours worked and should have been. The company responds that its real estate agents need not be paid minimum wage and overtime because they are exempt from such requirements as outside salespersons.

Industrial Welfare Commission Order No. 4-2001defines an “outside salesperson” as any person, 18 years of age or over, who customarily and regularly works more than half the working time away from the employer’s place of business selling tangible or intangible items or obtaining orders or contracts for products, services or use of facilities.

The key finding by the Kern County Judge was that the four real estate agents in the case he was handling spent less than fifty percent of their work time away from the office. As such, the exemption for outside salespersons was not available.

Whether the same is true with respect to most ZipRealty agents will be crucial in determining whether the Labor Commission succeeds in her action against the company.

Contact Schein & Cai for all of your employment law needs. Our attorneys have handled a variety of employment law disputes for some of America’s largest high-tech companies, including Yahoo! and Intel. We offer a free initial consultation.

Find us at www.sacattorneys.com.

Merger Disputes And Delaware Arbitration

Merger and acquisition agreements under which one company agrees to purchase another usually include provisions to protect
the parties until the deal is closed and all conditions met. These include commitments by the company being acquired that it will
continue to conduct its business in the regular ordinary course, and maintain and preserve its assets and customer relationships
until the transaction is complete. This warranty helps to ensure that no material change occurs in the business prior to closing,
and that the purchaser ends up with a company whose value is consistent with that revealed during due diligence.

Advanced Analogic Technologies, Inc. a semiconductor maker based in Santa Clara, California was to be acquired by a competitor based in Massachusetts, Skyworks Solutions, Inc. But the deal recently fell apart, with Skyworks claiming that Analogic Tech failed “to act and carry on its business in the usual, regular and ordinary course” and “use commercially reasonable best efforts, consistent with past practices, to maintain and preserve” customer relationships and assets.

This dispute, playing out in Delaware’s Chancery Court (the companies are incorporated in the state) is notable because it will be handled by the Chancery Court’s relatively new arbitration rules, meant to streamline the litigation process. Chancery Court arbitration permits one of the Court’s five judges to act as arbitrator.

Critics of the Delaware arbitration process bemoan the lack of transparency that accompanies arbitration and the fact that decisions by a Chancery Court judge acting as arbitrator will not become precedent that others can rely upon. Meanwhile, the parties involved may prefer saving legal fees, generally less in arbitration than trial, and the confidentiality an arbitration provides as to the details of the dispute.

However, it’s worth noting that Delaware is the state in which the majority of Fortune 500 companies are incorporated, not to mention many other public companies, as well startups that hope to raise money in the public markets. Regulatory filings required by public companies will force those involved in Delaware arbitrations to disclose certain information about the arbitration and its outcome that might otherwise remain confidential.

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.

Fresno Man Arrested For Investment Fraud Scheme

A Fresno man, Janamjot Singh Sodhi, aka Jimmy Singh, was arrested on September 15, 2011 on an outstanding warrant for an investment fraud scheme. According to a press release from the US Attorney’s Office for the Eastern District of California, Singh, through his company, Elite Financial, Inc., “enticed investors into giving him money for investment opportunities, but used the monies to pay off previous investors and for his own personal use.” The alleged fraud began in April 2010 and amounts to $2.4 million.

It’s interesting to note that investors could have potentially avoided problems in this case had they taken steps to confirm the status of Singh and Elite Financial by doing due diligence with state agencies before parting with their money. Had they done so, they might have discovered that Singh and Elite Financial were the subject of a Desist And Refrain Order issued by the California Department of Corporations on January 9, 2009,more than a year before the alleged fraud began.

The Desist And Refrain Order notes that the corporate status of Elite Financial Inc. was suspended by the Secretary of State in 2008, that Singh had previously been disciplined by the New York Stock Exchange in 2005 for misappropriating $474,700 of client funds, that he had failed to return more than $100,000 in Elite Financial client funds, and that Singh and Elite Financial had not secured a securities broker- dealer license or license to act as an investment advisor in the State.

As a result, Singh and Elite Financial were ordered to desist and refrain from acting as an investment advisor or effecting transactions in securities.

Schein & Cai handles investment fraud litigation. Contact us for a free consultation.

Find us on the web at www.sacattorneys.com.

Apple’s iCloud Meets and Defeats iCloud Communications In Trademark Battle

Apple announced its iCloud storage and synching service after its Worldwide Developer Conference held in June of this year. Shortly
thereafter, an Arizona based company, iCloud Communications filed a lawsuit against Apple for trademark infringement. At first blush,
the lawsuit seemed meritorious. iCloud Communications claimed to have been using its name in the marketplace since 2005, it was in
the telecommunications business which according to its complaint involved products that were “identical to or closely related” to Apple’s. Thus the likelihood of confusion in the marketplace seemed real, a hallmark of trademark infringement.

But early in September word broke that iCloud Communications was moving on its own to dismiss the lawsuit with prejudice. The company has now changed its name to Clear Digital Communication.

What happened between the time the suit was filed and dismissed? Is this a case of Apple flexing its muscles and strong-arming a smaller player into submission notwithstanding the merits of the case? Did the parties reach some sort of amicable agreement leading to the dismissal of the lawsuit? Did Apple compensate iCloud Communications and make it easier for the smaller company to give up its right to use the name?

We don’t know for sure what occurred but it has been reported that iCloud Communication never registered its iCloud trademark with the US Trademark Office. Of course, it’s an axiom of trademark law that trademark rights are established through use, not registration, though registration brings many advantages and is highly recommended in most cases.

One important clue suggests facts that might have tipped the balance in Apple’s favor. As it happens, a cloud computing company in Sweden, Xcerion, actually registered iCloud as a trademark on February 2, 2010. According to US Trademark Office records, Xcerion assigned its iCloud trademark to Apple Computer on July 11, 2011, the month after Apple’ Worldwide Developer Conference in which it announced its iCloud service and shortly after Apple was sued by iCloud Communications.

Perhaps this strategic acquisition of a trademark registration from a third party was the lever necessary to force Apple’s nemesis into submission.

Schein & Cai LLP, focused business and intellectual property law firm advising startups and established companies 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 us at www.sacattorneys.com.

The New Patent Law, Small Business and Individual Inventors

The debate continues to rage over the America Invents Act, recently signed by President Obama, the first major revision to US Patent Law in more than half a century. Is it good for innovation or bad? Does it favor small business or large?

Steve Perlman, a serial entrepreneur credited with inventing QuickTime and WebTV, and currently CEO of OnLive, a game streaming service, recently offered his opinion. Perlman sees little benefit for the small guy in the newly revised patent system. Under the old law, an individual inventor or small business could attempt to prove in court that they had been the first to invent patentable subject matter that a larger or more powerful company was claiming as their own. But now, because the US is adopting the first-to-file rule, which grants patents to the first inventor to file for the patent, rather than the first to invent, there is concern that small inventors will be at a disadvantage because they often try to shop their patents before filing, or may not have the money to pursue a patent application which can be costly.

Perlman also states that the new law does nothing to prevent so-called “patent trolls” from litigating as a business strategy. Patent trolls are companies, often formed for the purpose of patent litigation, that acquire or license patent portfolios not to use them for manufacturing products, but as swords to sue other companies whose products arguably infringe. These efforts can be financially rewarding, producing legal settlements and judgments. But critics argue they do little for innovation and economic growth. Because of “patent trolls” legitimate companies often acquire patent portfolios for defensive purposes, using money that might be best spent elsewhere in order to avoid or protect against such lawsuits.

We’ll highlight counter arguments in future posts on this blog.

For more information on the America Invents Act and its impact on your business, contact Schein & Cai.

Schein & Cai was recently named one of the Top US Patent Firm for 2010 by Intellectual Property Today®. 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.

Google And Oracle Are Trying To Settle Their Android Lawsuit

Oracle and Google are locked in a patent and copyright infringement battle that involves Java software and the Android mobile operating system. The Android mobile OS runs on 150 million mobile devices, with another 550,000 activated each day. Oracle owns the Java software as a result of its 2010 acquisition of Sun Microsystems and claims that the Android OS relies on Java, and is being used without license.

Many observers believe the case will be resolved before trial, set to start October 31. Google, which is cash rich, may prefer to settle rather than risk an adverse judgment. And Oracle, which is interested in generating license revenue to justify the Sun Microsystems acquisition, especially since Sun’s hardware sales have been falling, can’t get too greedy and demand exorbitant fees that would make Android less competitive in the marketplace.

Thus the circumstances for settlement appear to exist. Now it’s a question of whether the parties can agree on a number.

How much should Google pay Oracle as a license fee for each Android device to settle Java related claims? According to a Business Week report, analysts at Citigroup believe the license fee could be as high as $15 per mobile unit. But some see this as too high, an amount that would slow the sale of Android devices. Other analysts have suggested numbers ranging from less than $1 per device, to $10 per device.

It will be fascinating to see if the parties can reach agreement without trial – and what the magic number ends up being.

Schein & Cai was recently named one of the Top US Patent Firm for 2010 by Intellectual Property Today®. 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.

Former NBA Player Charged In Ponzi Scheme

Professional athletes, and former pro athletes, are always at risk of being preyed upon by dishonest advisors, untrustworthy friends and others who view them as prime targets because of their substantial earnings and public persona. Like other people, athletes may find it difficult to judge the quality and honesty of those who want to do business with them. And, like many, it may be difficult for them to understand how to properly invest and protect their assets.

The risk of becoming the victim of an unscrupulous investment scheme is only enhanced for pro athletes if the person seeking their money is a former professional athlete himself.

That’s what authorities believe occurred in the case of Tate George, a former NBA player with the New Jersey Nets and Milwaukee Bucks, now charged with running a $2 million Ponzi scheme, one which preyed on ex-pro athletes like himself.

Former NBA player, Brevin Knight, was previously awarded a $450,000 judgment against George in connection with a $300,000 loan he made for a real estate development project in New Jersey. Now authorities have charged George with investment fraud on a larger scale, claiming he lied to pro athletes, about the size of his real estate portfolio, causing several to invest money which he used to pay personal living expenses and early investors (the hallmark of a Ponzi scheme).

George, who lasted four years in the NBA, might be facing 20 years in Federal prison.

Schein & Cai handles investment fraud litigation. Contact us for a free consultation.

Find us on the web at www.sacattorneys.com.

Fair Use Under US Copyright Law

Fair use is one of the most difficult concepts to apply under US Copyright Law. It requires the application of general guidelines, set forth in US Copyright Law, to the specific facts of each case. It’s no surprise this process often leads to confusing, sometimes contradictory results in seemingly similar cases.

As a legal principle, fair use acts as a limitation on the exclusive rights of a copyright owner. The exclusive rights of a copyright owner include (i) the right to reproduce (copy) the work, (ii) the right to distribute the work, (iii) the right to prepare derivative works based upon the work, and (iv)
the right to display (or perform) the work publicly.

However, a third party may have a defense to copyright infringement for doing these things if making “fair use of a copyrighted work . . . for purposes such as criticism, comment, news reporting, teaching . . . , scholarship, or research.” 17 USC 107

The kicker is that courts are directed by statute to consider the following factors in determining whether a particular use qualifies as fair use:

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work

One can see how factors such as these, which are general in nature, might lead to varying even unpredictable results when applied by different courts to similar fact situations. That’s why fair use under US Copyright Law is a fascinating area for attorneys, even though it may be confusing and frustrating for their clients.

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.