Articles Posted in Business Law

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Due to the rising costs in litigation, there has been a large increase in the use of alternative dispute resolution. By utilizing the methods of alternative dispute resolution, parties are able to often save time and money when resolving their disputes. Arbitration is one method of alternative dispute resolution that is the most frequently used by the litigants.

Is Arbitration Binding?

Arbitration can be binding or nonbinding. A binding arbitration means that the participants to the arbitration must follow the arbitrator’s decision and that the court can enforce the decision. A nonbinding arbitration means that either party may decide not to follow the arbitrator’s decision and instead take the dispute to court. Although, both types of arbitration do exist, binding arbitration is much more common in the judicial system.

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In July 2017’s newsletter, we discussed how you can enforce an international arbitration award in the United States. Although, there are people who may want to enforce a foreign arbitration award, there are others who seek to defend themselves against it.

In general, the domestic courts can decide not to enforce a foreign arbitration award for a number of reasons. For example, these reasons can include: (i) if the arbitrator exceeds his/her power or authority; (ii) if the arbitrator was not neutral; (iii) if there were any instances of fraud; or (iv) if the arbitrator is found to be guilty of misconduct.

The New York Convention has outlined the other reasons for avoiding the enforcement of foreign arbitration awards. Additionally, some types of arbitration awards cannot be enforced under the New York Convention. For example, if someone tried to enforce a custody agreement, then they would be unable. The United States has stated that it only applies to matters that are considered commercial transactions under the federal law. This means that certain awards are excluded from being enforced in the United States, including, but not limited to, labor disputes, custody disputes, matrimonial disputes, succession of property disputes, or boundary disputes.

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OneLogin recently suffered from a major security breach. This breach has compromised private and confidential information, which is managed by its datacenter. OneLogin provides a service that is used by organizations to secure their data. It is basically a password manager for corporations. It allows employees, customers, and partners to gain secure access to the company’s cloud and applications on any device.  It allows its customers to integrate other websites and services like Microsoft Office 365, Slack, Amazon Web Services, Cisco, Webex, LinkedIn, and Google Analytics. The OneLogin website says that it currently has over 2,000 enterprise customers across 44 different countries. This includes well-known companies like Indeed, Pinterest, Midas, and Yelp.

How did this breach occur?

The breach occurred because the intruders were able gain unauthorized access to the OneLogin datacenter. Alvaro Hoyos, who leads the company’s risk management, security, and compliance efforts posted a blog about the risks. He wrote that a threat actor used one of our AWS keys to gain access to the AWS platform via API from an intermediate host with another, smaller service provider in the United States.  He said his company’s staff was able to detect and stop the intrusion very quickly.

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The United States Supreme Court came out with a new patent law decision in Impression Products, Inc. v. Lexmark International, Inc. For those who are not familiar with patents, a patent grants the holder an exclusive right to exclude others from making, using, importing, and selling the patented innovation for a limited time.

Lexmark International is a company that manufactures, designs, and sells toner cartridges. These cartridges are sold both in the United States and outside of the United States. Lexmark International owns patents that cover the components of these cartridges as well as the way that they are used by consumers.  Lexmark gives the purchasers of the toner cartridges two options: One option is to buy a toner cartridge at full price with no restrictions. The other option is to buy the cartridges at a discount through Lexmark’s “Return Program.” In order to get this lower price, the customers are required to sign a contract that they will only use the cartridge once and refrain from transferring it to anyone else except Lexmark.

Other companies that are known as remanufacturers would get the empty Lexmark cartridges, refill the cartridges with toner, and then resell those cartridges. Impression Products is one of those remanufacturers. They go through the same refilling process with cartridges that they acquire overseas and then import into the United States. Lexmark is suing Impression Products for patent infringement for both the “Return Program” cartridges sold in the United States and for the cartridges Lexmark sold abroad that were imported into the country by Impression Products.

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In theory, a moderator is a sound idea for any individual running a website that allows user interaction. Presumably, moderators can filter out comments and content that is disreputable, disrespectful, and patently offensive. The moderator can keep discourse civil and help foster insightful positions. Perhaps the website can even rely on volunteer moderators who are bound by the website’s rules and regulations. However, the moderator’s very existence risks making a website’s owner subject to liability for copyright infringement. These questions were recently addressed in a case involving LiveJournal. What is this case about? Why could a volunteer moderator trigger legal liability? Are there any guidelines to determine risks?

Mavrix Photographers, LLC v. LiveJournal, Inc.

This case is one arising out of the United States Court of Appeals, For The Ninth Circuit, regarding the potential liability of LiveJournal over an alleged infringement of twenty different photographs. LiveJournal is a social media website, which sets up various forums for different communities. The communities can post and comment on a theme and are allowed to create their own rules in addition to LiveJournal’s rules and regulations. The photographs were then published to a sub-forum on the website, focusing on celebrity news. The photographs were watermarked, and subject to copyright by the photographer. However, one issue was how LiveJournal used its moderators.

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Different states have different rules regarding the validity of non-compete agreements. In California, non-compete agreements are heavily disfavored and will usually only be upheld in a limited number of circumstances. When drafting a non-compete agreement, it is important to keep in mind where the employment will be taking place, so that you can know what types of non-compete agreements are allowable in that location.

Background

California, in general, finds that non-compete agreements after the termination of the employment agreement are not valid and will not be upheld by the courts except in specific circumstances. The California Business and Professions Code Section 16600 states: “Except as provided in this chapter, every contract by which anyone is restrained from engaging in a lawful profession, trade, or business of any kind is to that extent void.”  The courts have strictly applied Section 16600 and used this provision to invalidate employment agreements that would have prevented the employee from working for a competitor after the completion of employment.

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Among the rights people have, many are unknown or unsung until there is a dispute and the courts get involved in the process. Rarely recognized is the right to reverse engineer under the Fair Use Doctrine and Digital Millennium Copyright Act.  However, this is not an absolute right.  Rather, it can be waived under certain circumstances. So, how can the right to reverse engineer be used? How might an individual hope to reverse engineer anything? Can you prevent others from reverse engineering your products?

What does the reverse engineering law apply to?

Reverse engineering is a method of taking a device or program and taking it apart to determine how it works, occasionally in attempts to duplicate or improve it. Generally, this would be applied to devices or physical products that are protected by patents. However, in the realm of copyright, reverse engineering is allowed in some situations. Specifically, this applies to computer programs to allow interoperability of devices or systems.  Since computer programs may be designed to only work with a few devices or systems, to allow a consumer to use them on another operating system, reverse engineering would be a necessity.  This would allow individuals to ensure programs operate without interference or to add integration features.

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In today’s globalized world, with international markets becoming a stage for events to take place, how would you enforce a judgment in a foreign jurisdiction? After going through a lengthy process, it may seem unfair to go through the same procedure again without a guaranteed result.  So, simply because you obtained a judgment in your favor, if the court decision isn’t enforceable in a foreign jurisdiction, then how can you ensure you can collect? How can you ensure that things will end in your favor, and that the other side will not get away because he/she retreated to another country?

What needs to be in place to enforce my judgment?

You need the following items to enforce your judgment in a foreign jurisdiction: (1) a treaty with the foreign country agreeing to enforce the judgment; and (2) a domestic judgment in your favor that was issued within the United States. What makes this difficult is how the United States does not have treaties with other countries regarding the enforcement of judgments. While there is a treaty in place through the Hague Conventions on the Recognition and Enforcement of Foreign Judgments in Civil and Commercial Matters, only a few select countries are part of it, including, but not limited to, Kuwait and the Netherlands. Unfortunately, beyond that there is little else you could do to enforce a judgment. While we will discuss this in the next blog, arbitration agreements can bind those in other countries, and there is an effective convention that applies in those cases.

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For entrepreneurs who seek to engage in international business, it is important to keep abreast of developments in other countries. Political problems, exchange rates, and legislation may affect the business climate when engaged in international business.  The most recent shake up in international legal requirements seems to have risen from “Brexit” and what it means for those doing business with the United Kingdom, European Union, and United States. Brexit (which comes from the merger of “Britain” and “Exit”) is the UK’s vote to leave the European Union.  While this decision has had repercussions on the value of the British Pound, Euro, and U.S. Dollar, it also serves to show that the UK will no longer be bound by the European Union’s rules or regulations.  So, what law applies now? How soon will the United Kingdom be unbound from the European Union’s rules or regulations? What should American businesses take out of this referendum?

What does “Brexit” do?

The UK has voted to leave the European Union as part of a referendum voted on by its citizens. The EU is an economic and political partnership between various member states, sharing a common currency, with the exception of the United Kingdom, which uses the British Pound. The EU imposes certain restrictions when working with member states (e.g., Privacy Shield, Digital Single Market initiative). It serves to allow the free movement of people between member states. However, Brexit does not mean that right now, the UK has officially separated from the European Union.  Brexit has set in motion the process to fully remove the United Kingdom from the European Union.  It needs to invoke “Article 50 of the Lisbon Treaty,” to initiate the process, which grants both sides two years to negotiate the terms and conditions.  Essentially, the referendum will start the process, but does not remove the United Kingdom from the European Union immediately.

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So, you’ve worked on your crowdfunding and you’ve registered a trademark. What’s next? Well, ideally you’d have decided on this before, but every entrepreneur needs to decide what kind of entity he/she best fits the business structure. Now, there are different kinds of entities: sole proprietorships, LLCs, LLPs, S-corporations, C-corporations, and LPs. This alphabet soup of entities each stands for a different type of organization that changes the liability, and tax benefits or burdens that can be available. What is there to choose from? What are the benefits and burdens with each choice? How would someone choose which entity to form?

What kinds of entities are there to choose from?

Entities are best divided up into three major groups: (i) sole proprietorships; (ii) partnerships; and (iii) corporations. The major differences tend to be in terms of liability and how they are taxed. Sole proprietorships and partnerships tend to be taxed to the individual, with liability being imposed on those individuals who are directly responsible for the business operations. However, this can be changed in part through types of partnerships like LPs, LLP, and LLLPs. These are “Limited Partnerships,” “Limited Liability Partnerships,” and “Limited Liability Limited Partnerships.” These partnerships are formed according to state law, with LLLPs currently not allowed under California law, but if formed in another state, they must be registered with the California Secretary of State prior to doing business in the state. Among the three, they generally function by having general and limited partners. In Limited Partnerships, there are at least two general partners with unlimited liability, and a limited partner who is only liable for what he/she had put into the company.  Limited Liability Partnerships are similar, but unlike a general partnership, or a limited partnership, one would be isolated from the wrongdoings of their partners. LLCs can be used as a sort of partnership, as well, but can elect to be taxed as a corporation instead, with a tax through the company, and then to the owners.