Monthly Archives: January 2010

Construction Defect: Mold Management: What Have We Learned

If your practice concentrates on construction defect law or other areas of real estate law, we have just added a great new course that explores the dangers that are caused by mold. In Mold Management: What Have We Learned? Pete Fowler cuts through the complexity and media hype to focus on the real issues surrounding mold, in order to provide reliable sources of information for its management, and to introduce a framework for the professional handling of situations where mold might be present in occupied buildings.

While the damages caused by mold may not be the hot button topic that it was a few years ago, it still remains a viable portion of many attorney’s practice. In fact, one small firm that I know is handling between 65-70 mold claims as I am writing this. These claims do have merit, and depending on what state you practice in there may be significant liability. In the course, Mr. Fowler starts by describing the state of the legal landscape, details professional standards and practices, illustrates the dangers of mold, and finishes by thoroughly detailing the mold management method – a comprehensive six phase process for properly handling mold claims.

As President of Pete Fowler Construction Services, Pete Fowler is active as a General Contractor, Certified Professional Cost Estimator, Certified Inspector, Construction Consultant, author and speaker regarding construction topics. Focusing on construction projects and buildings suffering distress, Mr. Fowler has analyzed damage, performed testing, specified and overseen repairs, performed repairs as a contractor and testified on a wide variety of construction issues.

Short Sale: An Option to Avoid Foreclosure

We are currently in the greatest housing crisis since the great depression – and there is no end in sight. The numbers are simply staggering – since the start of the recession in 2007, over five million homes have been taken back by lenders and as many as 13 million more homes could fall into foreclosure over the next five years.

With the current economic conditions many homeowners find themselves “underwater” and swimming in debt. Foreclosure? Bankruptcy? A short sale may be much more advantageous to your client for numerous reasons. Join Gary Laturno and Vickki Kuick from Laturno Kuick Realty for Short Sale: An Option to Avoid Foreclosure as they discuss the nuts and bolts of short sales, from the issues that homeowners face to the process of working with the bank to get the deal done.

There are two main advantages that your client faces with a successful short sale. First, under the Freddie Mac and Fannie Mae guidelines, they should be able to buy property within two years. With a foreclosure on their record, this period of time may be much greater. Second, in the long run a short sale will more than likely not affect their credit rating as bad as a foreclosure. Varying minds will disagree, however, it seems as if lenders will not consider a short sale quite as bad as a foreclosure for credit purposes. While a credit rating may drop between 200-300 points with a foreclosure, an individual’s credit rating may drop as little as 80-150 points with a short sale.

This is an excellent course and will serve as a beneficial resource for any attorney who may be considering a short sale for their underwater client as opposed to foreclosure, which should be viewed as a last option. Both Vickki and Gary have a wealth of experience from having completed numerous short sale transactions, and their goal with this course is to get you to the point where you are able to close 90%-100% of these deals.

Yes, these are complex transactions. Yes, you can get yourself into trouble if you don’t know what you are doing. But if you listen to Gary and Vikki and take their practical advice, you will be able to complete these transactions with a little hard work. As an attorney, mediator, property manager, real estate broker and investor, Gary shares his knowledge on the current state of the housing market. As a former engineer and the owner of Laturno Kuick Realty, Vikki provides some wonderful insights into the nuts and bolts of the transaction and what you can expect during the deal.

Writing (Right) for the Trial Court

Any good writer will tell you that knowing your audience and tailoring your message is crucial. However, while many attorneys tend to write for their client and opposing counsel, they should be writing to the trier of fact. After all, it is the judge that will decide your client’s ultimate fate – not opposing counsel.

If you could use a few pointers on how to improve your legal writing – and I know we all can – please join attorney Randall Christison for Writing for the Trial Court. In this dynamic course, Randall illustrates effective writing styles for the trial court through the use of demonstrations and exercises. He provides practical tips that will help you to get your point across effectively, efficiently, and persuasively, and explains why brevity is your best friend and every unnecessary word is your worst enemy. Several judges have strongly endorsed his method, and by participating in the Ballona exercises and working on the Coastal Commission hypothetical, attorneys will definitely benefit their writing skills by taking this course.

When not a trial and appellate lawyer, Randall consults with law firms through Wolf Management consultants. He is a highly experienced lawyer, litigator, teacher, curriculum designer and legal writer. As a lawyer, he has been recognized by his peers to be one of the 10% of American lawyers who have received an AV Peer Review Rating, a rating he has held continuously since 1986.

Busy Month!

January has been a busy month! Not just with all the California attorneys signing up before the February 1 MCLE deadline, but with all the tapings we have had this month! We have added a number of new classes to the site, all from a number of different subject areas that can greatly aid you in your professional practice.

Starting a new practice? Join Debra Baker of Legal Vertical Strategies for Legal Transitions: Business Considerations When Starting a Law Firm. Debra hosts and moderates an event with two attorneys who have recently hung their own shingle – Ted Kim and Leo Sullivan – and she asks the pertinent questions that you have to ask yourself before you go solo. If you striking out on your own, or your firm just needs help redesigning it’s website, don’t pick up that phone or send an email until you’ve joined Jose Rosa of WebJuris for Due Diligence When Selecting a Web Development Firm. Jose covers the ABC’s of selecting the right web development firm that fits the needs or your firm or practice.

Need those darned specialty credits, but just can’t find any good legal ethics, substance abuse, or elimination of bias courses? We got you covered! In Legal Ethics: The Lawyer, The Judge, and The Lawsuit, retired judge Michael Orfield details those areas that get attorneys into trouble in the courtroom, from acting competently and communicating settlement offers, to withdrawal. If you need substance abuse units, join Ann Barber in Substance Abuse and Addiction: Pharmaceuticals, an interesting look into the newest fad in addiction – pill addiction. And don’t forget District Attorney and dynamic speaker Wendy Patrick Mazzarela who presents a lively discussion in Leveling the Playing Field: Eliminating Bias in the Legal Profession.

If you need help with the new California eDiscovery rules in 2010, join Micah Kasdan of TERIS for California eDiscovery Act: A Functional Interpretation. Clients have mold problems? Join Pete Fowler for Construction Defect: Mold Management: What Have We Learned?. And check very soon for Short Sales: An Option to Avoid Foreclosure, presented by Gary Laturno and Vickki Kuick of Laturno Kuick Realty.

There is Still Time


California attorneys do not fret! We have the units you need and there is still time to complete 25 hours of CLE before the February 1 MCLE deadline.

If you practice in California, at this point you in time you should be well aware that February 1 is the last day to complete and report your CLE to the California State Bar if your last name starts with A-G. If you still need specialty units – substance abuse, legal ethics, elimination of bias in the legal profession – we have the credits you need, and our convenient online format allows you to complete them from the comfort of your home without having to travel the local bar.
If your practice takes you into the courtroom, we have three great ethics courses that can help benefit you in your professional practice and keep you out of hot water with the local bar. Join ethics attorney David Cameron Carr in Ethics for the Trial Lawyer: The Limits of Zealous Advocacy as he presents an excellent discussion on an attorney’s ethical duties inside the courtroom. Another excellent resource we have just added right in time for the deadline is Legal Ethics: The Lawyer, The Judge, and The Lawsuit, in which retired judge Michael Orfield details those areas that get attorneys into trouble in the courtroom, from acting competently and communicating settlement offers, to withdrawal. And with Legal Ethics Goes to the Movies, professor Steve Berenson seeks to illustrate some ethical rules and issues by evaluating the conduct of attorneys from some of your favorite legal movie.
If you need substance abuse units, join Ann Barber in Substance Abuse and Addiction: Pharmaceuticals. While most traditional substance abuse courses talk about traditional drugs and alcohol, Ann Barber discusses the latest trend in drug abuse – pill addiction. From Viagra to Oxycontin, our country is about to start a new front on the war on drugs – legal prescription drugs. And if you are feeling a little stressed out, maybe Whitney Beard can help you in Substance Abuse: Tools for Reducing the Stress and Anxiety in the Practice of Law.
Lastly, we have also just added a great new elimination of bias from District Attorney and dynamic speaker Wendy Patrick Mazzarela. In Leveling the Playing Field: Eliminating Bias in the Legal Profession Ms. Mazzarela defines and details the state and federal laws that outlaw discrimination in the practice of law.
Whatever course you may need we have them! Don’t worry, you still have a week!

New Free Music Site – 5 Years Too Late?

After just completing a text course detailing the entertainment industry’s battle against online piracy, I was pretty surprised to wake up this morning to find this one: FreeAllMusic Strikes Deal With EMI For Ad-Supported Downloads.

Finally a common sense approach (indeed it’s almost the Hulu model for music) to the illegal downloading of music! We all knew that the digital revolution was coming. We all knew that it would changes our lives in unforeseen ways, and numerous commentators knew that it would greatly affect the framework of our Intellectual Property regime and copyrights specifically. But it’s as if someone forgot to tell the entertainment industry that this digital revolution was coming.

Instead of innovating and adopting novel legal solutions to the illegal downloading of music, movies, and television, the entertainment industry (through the RIAA and MPAA) has simply chosen to sue everyone under the sun! In the abscense of legal alternatives, of course people were forced to turn to illegal downloading, and the RIAA ended up suing 12 year old kids and 83 year old grandmas. Until the iTunes music store came along a few years ago, there was no real alternative to illegally downloading music.

The MPAA didn’t take much notice about the problem (not until a few years ago) because at the time that music files were being pirated across the world, the technology was not good enough to transmit massive movie files. Well, now that technology has caught up and broadband allows the transfer of massive amounts of information (including movie and TV shows) the MPAA has adopted the same approach as the RIAA – sue everyone in sight!

That is why it was so refreshing to read about FreeAllMusic.com’s deal with Universal Music and EMI. Albeit the deal is about 5 – 7 years too late to make any real difference, it does show that the music industry has finally realized that IP commodities will never be the same again. Simply put – the days of gauging consumers for $20 CDs is over, and if you want to continue to be viable in the marketplace you better find ways to innovate to stay ahead of the competition.

The MPAA realized this a few years ago when they launched Hulu.com in March 2008, a website that offers commercial-supported streaming video of TV shows and movies fromNBC,Fox, ABC and many other networks and studios. Hulu is a joint venture of NBC Universal, Fox Entertainment Group (News Corp), and ABC Inc. (The Walt Disney Company), with funding byProvidence Equity Partners, which made a $100 million equity investment and holds a 10% stake. Basically, it is a streaming video website that is owned by the content owners – this is how they were able to get the necessary licenses to host and display the content.

According to Dallas Mavericks owner and entrepreneur Mark Cuban, Hulu will eventually run YouTube into the ground. Its been over three years since he posted a declaration on his blog that only a moron would buy Youtube and that Google was crazy for actually going through with it, and he is starting to look more prophetic by the minute. Further he claims that while YouTube “hides behind” the safe harbor of the DMCA, Hulu has s superior advantage because it is able to license its content:

“Hulu has one HUGE advantage over YouTube, it has the right to sell advertising in and around every single video on its site. It can package and sell any way that might make its customers happy. YouTube on the other hand, has that right for only the small percentage of the videos on its site that it has a licensing deal with. For probably 99% or more of the videos on the site, YouTube isn’t supposed to know what they even are.

How can that be? Because YouTube hides behind the Digital Millennium Copyright Act. Hulu is a media site that presents videos with advertising. It can do whatever it wants. YouTube is a hosting service. It’s not allowed to know what videos are uploaded by users and its not allowed to generate revenue against those videos. It can only sell advertising around videos it has licenses to.”

One downside to all of this – if Cuban is right, and it looks like he is, content holders themselves will just about have exclusive control over their content online. This is especially true if Google and YouTube lose their upcoming $1 billion legal battle with Viacom. While some feel that YouTube may be protected by the safe harbor provision of the DMCA and the recent decision in Veoh, others feel that YouTube is destined to lose the case because there are reports that YouTube employees may be uploaded some of the ingringing content with the knowledge of their managers – this would be fatal to their case, and maybe their existence.

You can read more about the story of the entertainment industry’s battle for online supremacyThe Entertainment Industry’s Battle Against Online Piracy and Copyright Law in the Digital Age.

Trademark Suit Filed over the The South Butt

I have always found trademark, copyright, and right of publicity litigation interesting because of the types of cases involved. Who can resist a case involving involving a robotic Vanna White or a case involving Victoria’s Secret?

In yet another case to laugh at, The North Face has sued 19-year-old James Winkelmann for trademark infringement and dilution. The North Face makes, “Technologically advanced, innovative, apparel, footware, and gear that inspires you to Never Stop Exploring.” Winkelmann has enough spare time in between his studies as a Freshman biomedical engineering student at the University of Missouri to have created a line of clothing parodying the apparel company – or clothing industry and life in general. As laughable as these types of cases are, they still are taken seriously because they do have First Amendment free speech issues.

Winkelmann produces a parody clothes line – The South Butt. On the “About” page of his website:

I thought of The South Butt in response to a growing number of people
 who continued buying gear and clothes from a brand they really didn’t
 relate to, but were buying because “everyone else was”. After seeing the same people wearing the same brands, I decided to create
 a way to poke fun at the norm, while making an affordable and quality 
product.

The South Butt doesn’t expect you to climb mountains on your way to school
 or work. If anything, all I ask is that you make decisions and purchases
 based on what you like; not what you are expected to.

The South Butt – Never Stop Relaxing.

- Jimmy

Winkelmann states that he started his clothing line as a joke. He was inspired to do so after noticing that all his friends were buying North Face gear even though they weren’t mountaineers. He decided to poke fun at the idea by coming up with a “South Butt” logo, slapping it on jackets, T-shirts and sweatshirts, and selling the clothes via through a Columbia, Missouri pharmacy and the web.

While the whole project has been quite comical to Winkelman, North Face doesn’t find it so funny. In December, North Face busted out the big guns, retaining IP lawyers Michael Kahn of Bryan Cave and G. Roxanne Elings of Greenberg Traurig who promptly went about suing Winkelmann, his small company and the pharmacy that sells South Butt clothing. In the complaint, North Face’s contends that because Winkelmann intended to expand the manufacture and sale of The South Butt nationwide, it had no choice but to file suit for trademark infringement and dilution. And in North Face’s motion filed in December in Missouri, the apparel company claims that Winkelmann has caused it “irreparable harm” by producing his parody clothing line.

Along with a motion to dismiss the suit, Winkelmann and his attorneys countered by filing a pretty comical reply brief. Winkelmann’s answer, drafted by Albert Watkins of St. Louis firm Kodner, Watkins, Munchnick, Weigley, & Brison and filed on January 4, definitely plays up the David v. Goliath aspect of the lawsuit. Indeed, the suit pits the “world’s largest apparel maker against the 19 year-old college Freshman. You can download the motion here, but highlights include:

• The consuming public is well aware of the difference between a face and a butt

• But for the actions of North Face, the South Butt saga might have been relegated to local Friday fish-fry banter

• Described as a handsome cross between Mad Magazine’s Alfred E. Newman of ‘What me Worry’ fame, and Skippy the Punk from the Midwest, Jimmy refused to turn the other cheek

• Jimmy and The South Butt have no choice but to defend the present action to protect the integrity of the marketplace, freedom of choice for the consumer, freedom of speech for all, and the fundamental tenets of capitalism, competition and The American Way

It would seem that North Face’s infringement claim is unlikely to go far. In these types of cases the critical question is whether there is a likelihood that The South Butt trademark could be confused with The North Face mark. To me, it seems like someone would have to be pretty dumb to confuse a face with a butt. In regards to the dilution claim, Winkelmann may have a harder time defending that action, but should still prevail. Though The South Face may be intended as parody, a court would have to find that there was no likelihood of confusion between it and the North Face mark. After all, the true goal of trademark law is for consumers are able to find the goods and services they are looking for. Jimmy also has an excellent precedent in his corner with Louis Vuitton Malletier S.A. v. Haute Diggity Dog, a case with similar facts where the parodying company won. Indeed, in one commentator suggests that in order for the parody defense to work, your parody better be funny.

One thing is for sure, North Face’s decision to sue has brought much more attention to Winkelmann’s small clothing line than it previously enjoyed. Enough even to pay for all four years of Winkelmann’s schooling at Missouri. Winkelmann is moving enough merchandise that his website recently crashed three times due to the volume of traffic.

“Simply put, if it weren’t for the efforts of The North Face,” says Albert Watkins, “The South Butt probably wouldn’t still exist.”

Leveling the Playing Field: Eliminating Bias in the Legal Profession

California attorneys facing the February 1 MCLE deadline don’t fret! We have the one-hour of elimination of bias that you need to fulfill your MCLE requirement as mandated by the State Bar of California: Leveling the Playing Field: Eliminating Bias in the Legal Profession.

Join dynamic speaker and Deputy District Attorney Wendy Patrick Mazzarella for a thorough examination of bias in the legal profession. In Leveling the Playing Field: Eliminating Bias in the Legal Profession Ms. Mazzarella starts by defining bias and then details the state and federal laws that outlaw bias and discrimination in the practice of law, including Title I, V, and VII. Ms. Mazzarella wraps up the presentation by pointing out who is not protected and presents numerous case examples, including an attorney who was asked by a judge to take his turban off.

Ms. Mazzarella is a San Diego County Deputy District Attorney, named by her peers as one of the Top Ten criminal attorneys in San Diego by the San Diego Daily Transcript in both 2007 and 2008. Most of her practice is trial work and she has completed approximately 142 trials including nearly 100 criminal jury trials ranging from hate crimes, to torture, to first-degree murder. She is also the former Chair and a current member of the San Diego County Bar Association’s Ethics Committee, one of 16 members of the California State Bar’s Standing Committee on Professional Responsibility and Conduct (COPRAC), and an accomplished public speaker on the topic of ethics both nationally and internationally.

Ms. Mazzarella has been teaching trial skills for over a decade around the country to national and international audiences and she is published on a regular basis. She is co-author of the revised version of the New York Times bestseller Reading People (Random House 2008), and was a contributing author to the Encyclopedia of Race and Racism (Macmillan Reference 2007), and Hate Crimes: Causes, Controls, and Controversies (SAGE 2004). She has her own ethics column in the San Diego Daily Transcript, a regular column in Law Enforcement Quarterly, is a writer and editorial Board member for San Diego Lawyer and The Bencher, and has been published multiple times in California District Attorneys Association publications and the California State Bar Criminal Law Journal.


Substance Abuse & Addiction: Pharmaceuticals

California lawyers looking for specialty units, we have the one hour of substance abuse credit that you need: Substance Abuse & Addiction: Pharmaceuticals!

While many substance abuse courses cover traditional areas of abuse and addiction, in this one hour Substance Abuse course, Deputy District Attorney Ann Barber covers a disturbing new drug trend in our country – pharmaceutical abuse. Substance Abuse & Addiction: Pharmaceuticals is a must for any attorney that works in law enforcement. Barber uses her experience from frontline to document new trends in drug abuse and addiction and gives you the resources that you need to spot a possible drug issue.

Whether pharmaceuticals are initially obtained for a legitimate medical purpose and later abused, obtained through fraud or theft, or smuggled back from Mexico, these drugs can provide great medical benefit when used as prescribed but present an increasing danger as vehicles of drug abuse and diversion. The course further covers commonly abused phramceuticals, the consequences of abuse and addiction, how to recognize specifc pills, and the oxycontin epidemic that has gripped our country.

Worse yet, the young people of our country are particularly at risk. In fact, some studies suggest that teens aged 12-17 maybe trying and using illegally gained pharmaceuticals just as much as marijuana, and more than other traditional types of drugs. From oxycontin to adderall, pharmaceuticals have become the new drug of choice for many teens at “rainbow” or “pharma” parties.