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Portland Timbers as Champions of Major League Football…Soccer

As the Timbers hoist the top prize yesterday, the MLS Cup Trophy, Portland has cemented its position as Soccer City USA. Liam Ridgewell, Timber’s center back from England, calls the sport “football.” Why do us Americans use a different name?

Actually, the British were the first to use the word “soccer.” An Oxford student, Charles Wredford Brown, is credited with coining the name in 1863. British schoolboys liked to nickname everything and often added an “er” to such names. At the time, soccer and rugby were both commonly known as “association football” and “rugby football,” respectively. “Association football” became “soccer.” The “soc” was taken from “association” and an “er” was added. “Rugby” became “rugger.” Charles was asked if he would like to play a game of “rugger” and responded that he preferred “soccer.”

Rugby and soccer were originally sports for gentlemen, primarily played by the upper echelons of society. As they spread to the masses, “association rugby” did not catch-on and “association football” became known as just “football.” Other countries, such as the US, had meanwhile developed other popular sports that were being called “football,” and kept the prior name of “soccer” to avoid any confusion.

Congratulations Association Football City USA.

The End of Litigation

Apple’s announcement on Wednesday, of its latest version of gadgets, garnered the attention of the public.  However, a more significant technological advancement–at least in law–came today from the son of an attorney, Bill Gates. Microsoft has launched a new program that will essentially eliminate the need for litigation. No more juries, judges, or courtroom drama. Say hello to LOS (Legal Operating System).

How does it work? Whenever there is a legal dispute, the two parties simply enter their information into the system and LOS spits out a result. Years of development have gone into LOS, which allows it to handle, as boasted by Microsoft, any kind of dispute. Past cases and decisions for each separate jurisdiction have been entered into LOS, allowing it to access such and ensure consistent outcomes for future disputes.

The parties interface with “Ati,” a virtual person similar to Apple’s Siri. However, unlike Siri, Ati usually asks the questions. Ati will assist the user in obtaining helpful documents and electronic records. Ati may also want to “talk” with witnesses so that it can assess and process their information.

LOS, however, does not eliminate legal costs. You pay upfront. To begin a case in LOS, both parties must pay the full amount in dispute. At the conclusion of the case, LOS deposits any award into the account of the party it determines to have prevailed. LOS deducts and keeps a percentage from the award.

LOS is based on the premise that litigation can be reduced to a mechanical application of law to facts. However, this is not reality–at least in the present day. And, yes, for now, this blog is pure fiction. Maybe someday computer programmers will replace us lawyers.

Fighting for His Piece of the American Pie

Acker + Associates P.C. Newsletter

 TaxiCab

Fighting for His Piece of the American Pie:

A + A Obtains Jury Award for Green Cab Owner

Awelew Belete arrived in the United States in 1989 as a penniless refugee from Ethiopia. He and the other two current owners of Green Transportation Company immigrated together. They left behind their one-room house, which they shared with their respective families.

For his first seven years in the United States, Awelew worked sweeping floors in a warehouse in Portland. He worked 12-hour shifts, 7 days a week, so that he could earn money to support his family and himself. With his earnings, Awelew purchased a house. He also invested with several others in a taxi business that became known as Green Cab.

By 2007, Awelew was one of the three remaining owners of Green Cab. Over the years, Awelew grew concerned with and disputed the aggressive business decisions made by the other two members. He complained when company loans were obtained without his approval.

The other two members demanded that Awelew pledge his house as security for company refinancing purposes. Awelew requested copies of company financial records. Tensions flared between Awelew and the other two members.

The dispute culminated with a decision by the other two members, on December 23, 2013, to expel Awelew from the company. They claimed that Awelew’s conduct justified his expulsion from the company.

On behalf of Awelew, Acker + Associates filed suit in early 2014, claiming wrongful expulsion. Over a year later, and after a three-day jury trial, the jury awarded judgment in Awelew’s favor.

The jury determined that the expulsion of Awelew and the borrowing of money constituted a breach of the company’s operating agreement and the fiduciary duties owed to Awelew, and awarded him approximately a quarter of a million dollars. After the jury rendered its verdict, the judge gave Awelew a choice between receiving the jury’s monetary award or being deemed a one-third owner. Awelew selected the latter option, and the judge granted Awelew’s request for a declaration that he is still an owner of the company.

In a heartwarming victory, Acker + Associates helped Awelew reclaim his piece of the American pie.

Oregon’s “Gangapreneurs”

Acker + Associates P.C. Newsletter

 Pot Leaf

OREGON’S “GANJAPRENEURS”

This November, Oregon voters passed Measure 91. The act permits recreational use of marijuana under Oregon law. Beginning on July 1, 2015, adults aged 21 or older may privately grow, possess, and use limited amounts of the plant and derived products.

The law also opens the door to future retail sales of marijuana at licensed shops. As with alcohol, the Oregon Liquor Control Commission (OLCC) is charged with regulating the industry. The OLCC’s public rulemaking process will establish comprehensive regulations to deal with issues involving sales to minors, advertising, product safety, and business licensing.

The OLCC will begin accepting license applications no later than January 4, 2016. Marijuana-related businesses will be categorized as Producers, Processors, Wholesalers, and Retailers, each with its own set of rules. Licenses will cost $1,000 per year. A single licensee may hold multiple licenses and license types.

Business opportunities abound for not just the retail sale of marijuana but for ancillary products and services. Commercial greenhouse pot production can require heating and cooling systems, carbon dioxide injections, grow lights, air ventilation and filtration, and hydroponic or irrigation systems. The product itself must be properly harvested, packaged, labeled, stored, and shipped.

The marijuana industry will undoubtedly mirror goods and services found in the alcohol industry. The new law allows the sale of marijuana paraphernalia, such as pot-growing kits. Colorado and Washington, which both legalized marijuana in 2012, have already seen businesses offering marijuana “tastings” and tours.

Federal law continues to list marijuana as a Schedule I controlled substance–a category that includes the “most dangerous drugs” like heroin. This fact adds substantial risk to marijuana-related business as most operations likely violate or cannot benefit from federal laws.

Under the Obama administration, the feds have informally stated that prosecuting businesses that are complying with strong state regulatory systems is not a priority. However, a shift to the right in politics could cast a haze over such policy.

Measure 91 creates numerous opportunities for budding “ganjapreneurs.” Please contact Acker + Associates for any legal assistance.

Bicycle-Riding Ebola Zombie Nurses?

Acker + Associates P.C. Newsletter

BICYCLE-RIDING EBOLA ZOMBIE NURSES?

Ebola Law 101

10/24–Nurse Kaci Hickox returned to the United States from treating Ebola patients in Sierra Leone. Upon her arrival in New Jersey, she registered a temperature of 101. (Later her temperature was determined to be the normal 98.6.) Pursuant to New Jersey policy, Ms. Hickox was quarantined in a tent for the weekend.

10/27–Ms. Hickox was transported to her home in Maine (via two black SUVs with tinted windows).

10/30–Ms. Hickox went on a bicycle ride with her boyfriend and met with reporters, violating Maine’s quarantine policy.

10/30–A Maine judge signed a “temporary order” limiting Hickox’s movement.

Ms. Hickox claims that she has experienced no symptoms and that Maine’s policy is not medically or legally sound. (Her boyfriend claims that the government has “messed with the wrong redhead.”)

Does the government have the legal muscle to keep Ms. Hickox at home…and off her bike?

The federal government doesn’t mind her bicycle riding. Current CDC guidelines for healthcare workers only require self-monitoring and avoiding public transportation, as long as one remains symptom free. (See Ebola: The Power to Isolate for an analysis of the legal authority for federally mandated quarantines.)

However, Maine officials consider Ms. Hickox’s activities as violating its 21-day home quarantine for Ebola health workers returning from West Africa. Maine courts may interpret Maine law differently.

According to Maine law, a court may order confinement when needed to avoid a clear and immediate public health threat. Since Ms. Hickox is not showing any symptoms, and health authorities have indicated that Ebola is not contagious unless one is experiencing symptoms, the clear and immediate public health threat may prove a difficult standard to meet.

What about Oregon? Oregon law has a similar standard–clear and convincing evidence that confinement is necessary to prevent a serious risk to the health and safety of others. Confinement may occur before a court hearing, upon the determination that probable cause exists to believe that the individual requires immediate detention to avoid a clear and immediate danger to others.

Whether or not a court upholds Maine’s attempt to quarantine Ms. Hickox, she may create serious legal ramifications for herself in the event she did infect another with Ebola. At a minimum, her refusal to comply with the state quarantine policy may help another establish a civil negligence claim against her.

Regardless of whether you think of Ms. Hickox as a crusader, an egocentric, or a fiery red-head, we should all thank her. With Halloween upon us, she has provided a great costume idea–a bicycle-riding Ebola zombie nurse.

Happy Halloween!

EBOLA: The Power to Isolate

Acker + Associates P.C. Newsletter

EBOLA:

THE POWER TO ISOLATE

Thomas Eric Duncan, the first patient diagnosed with Ebola in the United States has died in isolation at a Dallas hospital.  Mr. Duncan’s female companion, his 13-year-old son, and two others are currently quarantined in a four-bedroom home on a remote property.  They are prohibited from leaving under the threat of prosecution.

The White House has announced that additional screening will begin at five U.S. airports for travelers arriving from West Africa.  Such screening will include taking the temperatures of travelers.

In Spain, the first woman known to contract Ebola outside of West Africa, is quarantined in a hospital, as is her husband.  Their dog, Excalibur, was euthanized as a precaution despite protests from the owners and animal rights groups.

Does the U.S. government have the power to isolate and quarantine individuals it suspects of having Ebola?  What about the constitutional protections of due process, freedom from search and seizure, and freedom of assembly?

The Supreme Court has interpreted the Commerce Clause of the U.S. Constitution (Art. I, Sec. 8, Cl. 3) as providing power for the government to isolate and quarantine, regardless of other constitutional protections.  The legislature has codified broad power to enable the Secretary of State to prevent the introduction, transmission, and spread of communicable diseases in the United States.

Ebola can only be spread through blood or bodily fluids.  It is not airborne.  Containment should be achievable in societies with the necessary resources and coordination.  For instance, Nigeria, the most populous country in Africa, recently reported that it has contained the spread of the disease with its “contact tracing” system.

What happens if Ebola mutates and becomes airborne or another, more contagious disease appears?  What if the populace is simply led to believe that such a superbug exists?  With the power to quarantine and isolate, we could find ourselves living in a police state.  Maybe certain science fiction movies are not so far from our future reality.

Oregon Court Slams on Brake for “Independent Contractors”

Acker + Associates P.C. Newsletter

OREGON COURT SLAMS ON BRAKE

FOR “INDEPENDENT CONTRACTORS”

Avoiding employment issues by hiring independent contractors instead of employees?  Careful.

Last week the Oregon Court of Appeals ruled that, for the assessment of unemployment insurance tax, Broadway Cab’s drivers are employees.

Broadway Cab argued that its drivers are independent contractors and that it merely provides administrative services (such as dispatch, billing, and marketing).  The Court found that Broadway Cab’s drivers did not (1) maintain a separate work location, (2) routinely engage in advertising and marketing, or (3) have the authority to hire and fire others.

While the Court entertained Broadway Cab’s argument that driver-owned vehicles constitute work locations, the Court concluded that they are not separate from Broadway.  The Court noted Broadway requires its name on the vehicles, dictates vehicle color, and controls where inactive vehicles must park.

The Court found that the use of business cards by some drivers does not constitute routine advertising and marketing.  Also, the Court indicated that drivers must have the authority to hire and fire other drivers–as opposed to mechanics, CPAs, and other professionals.

The fact that drivers are paid directly by riders and pay a fixed weekly amount to Broadway Cab, regardless of what they make from riders, did not sway the Court.

On a national level, McDonald’s also recently found itself on the losing end of an employee versus independent contractor analysis.  The National Labor Relations Board (the federal agency with power to remedy unfair labor practices of private sector employers) announced on July 29, 2014 that the parent company can be held liable for the labor practices of its franchisees.  In other words, the NLRB supersized McDonald’s liability to include potential employment claims of franchisee employees.

[On a personal note, Oregon Appellate Judge Erica Hadlock, who wrote the opinion in Broadway Cab LLC v. Employment Department, was a classmate of mine at Cornell Law School and a colleague at a local law firm. -R.A.]

Aspiring Lawyers Sue for Stress from July Bar Exam

Acker + Associates P.C. Newsletter

ASPIRING LAWYERS SUE FOR STRESS

FROM JULY BAR EXAM

Question:  What happens when you mix budding attorneys, stress, and software glitches?

Those taking the Oregon bar examination last month were permitted to use laptops if they purchased software from ExamSoft Worldwide Inc.  The software essentially turns off all other features of the computer (such as the ability to access the Internet) and only allows the test takers to access authorized materials.  The answers, which could not be changed after the test period ended, were supposed to be uploaded before midnight of the day of the test.

After the first day of the bar exam (the essay portion), the software would not permit many of the test takers to upload their essays.  Eventually, the software appeared to function properly but only after test takers tried frantically for hours to use it.  Many claim the glitch prevented them from resting and preparing for the second day of the test–the dreaded multistate, multiple-choice portion.

ExamSoft refused requests for refunds.  The test takers sued for breach of contract, violations of various consumer protection laws, and unjust enrichment.

Generally, one cannot recover for emotional distress or speculative damages under the asserted claims. While results of the test have not yet been published, failing to pass the test and related ramifications constitute speculative damages. In other words, any recovery will likely be limited to the cost of the software, approximately $150 per user–more than the filing fee for the lawsuit.

Free Range Hybrid Electric Corporations

Acker + Associates P.C. Newsletter

FREE RANGE
HYBRID ELECTRIC
CORPORATIONS

Traditionally, corporations are structured to maximize profit for their stockholders. As of this year, Oregon recognizes a new classification for corporations and LLCs that seek to accomplish something further–the Oregon benefit company.

The 2010 case of Ebay v. Newmark et al. illustrates the need for this new entity. The founders of craigslist, Craig Newmark and James Buckmaster, attempted to install a “rights plan” to allegedly protect its community-minded corporate culture. The Delaware Court rejected the plan and stated that the corporate form is not an appropriate vehicle for philanthropic ends and that the craigslist directors must act “to promote the value of the corporation for the benefit of its stockholders.”

The Oregon benefit company provides such a form for pursuing a “positive impact on society and the environment.”

Just like you considered before buying that Prius–what are the costs and benefits?

While the state does not impose any costs for the designation, it does have requirements that may result in some costs. The company must include a statement in its Articles about its status as an Oregon benefit company. The company must adopt a third-party standard. Third-party standards organizations (such as B Lab) provide such standards and audits, for a fee. Also, the company must prepare an annual benefit report and post it on the company’s website.

As for the benefits of this designation, the company is authorized to pursue its stated public benefit purpose–as opposed to just generating profits. In addition, such a designation could help attract customers and clients that share the same goals.

World Cup Update

U.S. advances out of the “group of death” behind Germany!–as we predicted in the 6/12 Legal Bits.

The World Cup continues to provide drama on and off the pitch. Ghana is out but not before the players convinced the Ghana president to send $3 million on a plane for their promised bonuses.

Luis “Cannibal” Suarez was handed a nine-game FIFA suspension for biting Italy’s Chiellini. Chiellini is not an Italian dish but a defender. This was Suarez’s third bite–not in preschool but in a FIFA soccer match. Vampire conspiracy? The referee that refused to card Suarez not only resembles but actually has the nickname “Dracula.”

Oregon’s Unique Coastal Property

Acker + Associates P.C. Newsletter
Oregon Coast

OREGON’S UNIQUE COASTAL PROPERTY

    …and World Cup Soccer

If you take a summer stroll at the Oregon coast, as long as no natural barriers interfere, you could walk forever. Only Oregon can boast that all of its beaches are public.

On July 6, 1967, Governor Tom McCall signed the “Beach Bill” which declares public ownership of land along the Oregon coast from the water up to 16 vertical feet from the low tide mark. In addition, public easements are recognized for all beach areas up to the line of vegetation.

At the time, not everyone was pleased with public ownership, especially those that lost their private property rights. Before the Beach Bill, the state claimed ownership of all beaches as a public highway. Cannon Beach motel owner William Hay objected. He fenced off some of the dry sand area above the high tide line. Perhaps recognizing the weakness of the public highway argument, the state responded with the Beach Bill.

Speaking of beaches, how about those beaches in Brazil…and the World Cup? (OK, that was a weak segue to soccer.) Remember, U.S. plays Portugal at 3 p.m. on Sunday.

Not watching?! 46% of the entire world population watched at least one game of the last World Cup. For the U.S. v Ghana match last Monday, the country of Ghana had to ration electricity so that everyone could watch the game.

Despite Altidore’s absence (hamstring), I stand by my prediction in the last Legal Bits–U.S. will advance from the “group of death.”