The basic rules for commercial emails should be known by all business organizations. They should include having proper identifiers, opt-out mechanisms, and a valid mailing address in all commercial emails. In fact, the CAN-SPAM Act states that the senders of commercial emails will be acting legally if:

1) The header of the commercial email (indicating the sending source, destination and routing information) doesn’t contain materially false or materially misleading information;

2) The subject line doesn’t contain deceptive information;

Internet spam violations have increased in the past years. For example, the spammers use the interconnected network of computers that links us together in the world to disseminate malware. The spammers also use the internet to send junk email that fills up email accounts and can be used to commit online fraud – e.g., identify theft.

Robocall violations have also increased in the past years. For example, the robocallers use the telephone systems to continuously call without proper authorization. They do not state their personal or business organization’s names. They call before or after the permissible time periods (i.e., before 8:00 am/after 9:00 pm). They call by using artificial voices or recordings. They may also use automated telephone equipment to make the phone calls.

What are the legal remedies?

There have been cases where spammers have transmitted spam via email and text messages. These messages can include improper content, propaganda, hidden messages, and malware (e.g., virus, trojan, ransomware, adware, spyware). The spammers use the Internet Service Provider’s and user’s bandwidth to disseminate spam which results in bandwidth saturation, lost productivity, and other complications.

What is spam?

Spam is unsolicited commercial email advertisement that is sent towards recipients by third parties. An “unsolicited commercial email advertisement” means a commercial email advertisement that: (1) The recipient has not provided direct consent to receive advertisements from the advertiser; and (2) The recipient does not have a preexisting or current business relationship with the advertiser.

Both California and the federal government have enacted statutes that regulate arbitration agreements and awards. The Federal Arbitration Act (FAA) and California Arbitration Act (CAA) are similar in many aspects but they have differences that can sometimes lead to conflict. Other state and federal statutes can also conflict with the FAA. Under the Federal Preemption Doctrine, provisions of state law that directly conflict with a federal statute are invalid or unenforceable. The U.S. Supreme Court has issued several rulings in recent years about preemption of state laws, and even other federal laws, by the FAA. The Supreme Court has also identified situations in which the CAA can apply instead of the FAA.

Federal Preemption Doctrine

The Supremacy Clause, found in Article VI, clause 2 of the U.S. Constitution, states that federal law is “the supreme Law of the Land.” The preemption doctrine is intended to guide courts in determining when federal law supersedes state law. In a 2009 decision, Wyeth v. Levine, the Supreme Court expressed its “assumption” that preemption would not occur “unless that was the clear and manifest purpose of Congress.” Whether the court has always strictly held to this principle is a matter of some disagreement.

The U.S. Supreme Court Finds Preemption by the FAA

In 2017, the Supreme Court decided Kindred Nursing Centers Ltd. v. Clark, which involved a challenge to mandatory arbitration clauses signed by individuals with powers of attorney on behalf of elderly nursing home residents in Kentucky. Under Kentucky law, according to the Supreme Court, “the rights of access to the courts and trial by jury [is considered] to be ‘sacred’ and ‘inviolate.’” State courts ruled the arbitration agreements to be invalid. The Supreme Court found the state court rulings to be invalid under § 2 of the FAA, which states that arbitration agreements are only subject to challenge under “such grounds as exist at law or in equity for the revocation of any contract.”
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When the government needs to acquire private property for public use, it can do so through a procedure known as eminent domain. The Fifth Amendment to the United States Constitution prohibits the government from taking property from a private individual or business “without just compensation.” Eminent domain is intended to provide a means of determining fair compensation. When the government exercises eminent domain over real property that is subject to a lease, both the property owner and the lessee are entitled to compensation. A California appellate court recently ruled on a dispute between a former property owner and its former tenant in the aftermath of an eminent domain proceeding. The court’s decision addressed the various types of property that can be involved in an eminent domain or other condemnation action.

Eminent Domain in California

The California Eminent Domain Law (EDL) limits the government’s use of eminent domain to situations in which it needs private property for public use. If a civil action for eminent domain is necessary, the government must name all owners of record as defendants along with anyone else the government knows “to have or claim an interest in the property.” This includes individuals or businesses that occupy the property under a lease.

Condemnation Clauses in California Commercial Leases

A lease creates a real property interest for the lessee who is also known as the tenant. When real property is primarily used for commercial leasing purposes, lessees often stand to lose the most in eminent domain since they are the ones who will be displaced by the procedure. Therefore, many leases contain condemnation clauses, which address matters like the distribution of compensation if the property becomes unavailable or unusable because of government actions like eminent domain.
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Mediation gives the parties to a dispute, either during an ongoing lawsuit or in an effort to avoid one, a chance to present their cases to a neutral third party trained in dispute resolution. In order to promote candor during the mediation process, anything that is said during mediation is considered confidential under state law. California requires the parties to a mediation to follow specific procedures to ensure that any written agreement resulting from mediation is admissible in court. This may be necessary in order to have the parties’ agreement entered as a judgment or to have it be enforceable as a contract.

Confidentiality of Mediations Under California Law

Under the California Evidence Code, statements made during mediation, whether oral or written, are not admissible in any noncriminal judicial, administrative, or arbitration proceeding. Any and all communications between the parties involved in mediation or between them and the mediator must remain confidential.

State law makes an exception for written settlement agreements prepared during or at the end of mediation, provided that all parties consent in writing to disclosure of the document. If the document meets all of these requirements, a court may rely on it to enter a judgment in a civil proceeding. Otherwise, the document is not admissible as evidence.
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Laws against forgery of documents have existed for almost as long as writing itself has existed. For most of that time, forgery techniques did not change very much. However, modern digital technology has significantly expanded opportunities for people to create fraudulent documents. Real estate transactions are making increasing use of “paperless” applications, but most areas of real estate remain firmly rooted in paper. This is particularly true of public real property records. While the media in California might report on how blockchain and other digital tools are changing the real estate business, yet real estate forgery is still mostly rooted in creating documents that could be printed onto paper.

Forgery Laws in California

California’s forgery statute, found in California Penal Code § 470 covers a broad range of activities. In addition to signing another person’s name to various documents without authority, the statute makes it a crime to intentionally “alter, corrupt, or falsify any record of any … conveyance” which includes real estate documents like grants or deeds. Under California Penal Code § 115, a person commits a felony when they knowingly file “any false or forged instrument” with a government agency, such as a county recorder’s office. State law allows county recorders to accept “digitized images, digital images, or both” of a recordable document for filing.

In fact, Section 502(c)(1) prohibits altering or deleting data stored on another person’s computer or computer network as part of “any scheme or artifice to defraud, deceive, or extort.” This can include attempts to falsify or forge digital documents affecting real estate transactions.
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Mediation is a form of alternative dispute resolution (ADR) that allows the parties to a dispute to present their claims to a neutral third party, known as the mediator, who will try to help them reach an agreement. Once the mediation is over, how can one party make sure that the other party or parties hold up their end of the agreement? The best way to enforce a mediation agreement depends largely on the circumstances in which the mediation took place. If the mediation occurred as part of a lawsuit, the court can enter an order that encompasses the agreement’s terms. If it was not part of a lawsuit, then the written agreement will be enforceable as a contract.

What Is Mediation?

In general, mediators are trained in conflict resolution which includes identifying areas in which parties to a dispute have common ground and encouraging them to resolve their differences. The goal of mediation is to come to an agreement that everyone can live with even if they do not particularly like it.

Mediation is a less formal procedure than arbitration which resembles a trial in many ways. While arbitration almost always results in a decision by the arbitrator, mediation is not guaranteed to result in an agreement. If a party to the mediation walks away, then the remaining parties cannot mediate any issue that involves that party. If the parties have not reached an agreement at the end of the period of time allotted for the mediation, they can either arrange for more time with the mediator, or they can walk away and pursue other avenues such as litigation.
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The world is growing increasingly “paperless” as more documents move into digital spaces. People born in this decade might only know terms like “sign on the dotted line” and “before the ink is dry” as something their grandparents would explain. Without hard copies of important documents, though, our legal system needs new ways to indicate that a person has agreed to a contract. Now, electronic signatures (a/k/a “digital signatures” or “e-signatures”) provide evidence of assent without the need for a pen and printer. Federal and state laws, such as the Electronic Signatures in Global and National Commerce (E-SIGN) Act, establish standards for proving the legitimacy of electronic signatures. In real estate transactions, electronic signatures are allowed in any situation where the law does not specifically require otherwise.

What Is an “Electronic Signature”?

The E-SIGN Act defines an electronic signature as any “electronic sound, symbol, or process” that meets the following criteria:

1. It is “attached to or logically associated with” a document (e.g., contract); and
2. The person who “executes or adopts” it intends to do so.

Electronic signatures are possible with hardware, such as the signature pads at many retail checkout counters; and software, such as the signature features in applications like Adobe Acrobat or services like DocuSign. The signature must meet the standards set by federal or state laws and an electronic signature must be acceptable for that document.
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Alternative Dispute Resolution (ADR) allows two or more parties in conflict to take their case before a neutral third party outside of the court system. This often has the benefit of sparing them the expense of litigation and to avoid a trial. Many contracts now include clauses requiring the submission of disputes to arbitration which is a type of ADR that resembles a trial. If the parties have agreed in advance, the arbitrator’s award will be binding on them. In fact, federal and state laws have encouraged the arbitration of disputes and have established procedures for enforcing binding arbitration awards.

What Is Binding Arbitration?

An arbitration is similar in many ways to a courtroom trial. A trained and certified arbitrator, or a panel of arbitrators, conducts a “trial” in which both sides present their claims, defenses, and evidence. The arbitrator then makes a decision and issues an award.

This award is only binding on both parties if they have agreed in writing. If an arbitration agreement does not specify that the award will be binding, either party is free to disregard it and seek other means of redress.
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