Towards A Healthy Economy + Marketing World

AN INVITATION FOR CLASS ACTION ATTORNEYS TO ENGAGE IN UNPROFESSIONAL CONDUCT

Modern multiforum litigation creates a conflict of interest environment in which attorneys representing class plaintiffs may be tempted to settle class action lawsuits for the wrong reasons. Instead of rejecting an inadequate settlement offer, the class counsel might recommend settlement so that he can be assured of collecting an attorney fee award and so that the claims of his clients will not become barred by the preclusive effect of a settlement negotiated in another forum. A trend has now developed in which the plaintiff class counsel compete with one another to offer the best and most sweeping settlement terms to defendants, and these settlements generally contain a global release of all claims in other fora. Once these global releases are approved and entered as part of a class action judgment, the releases effectively extinguish or bar related actions by class members in any other forum.

An attorney who wishes to conduct his class action practice in a diligent and ethical manner can be harmed by the unethical behavior of some class counsel who use claims in other fora as a bargaining chip to maximize the settlement terms for their own fee award. The resulting settlements may be contrary to public policy in the sense that (1) injured class members receive little or no recovery, and (2) viable claims in one forum are extinguished by the claim preclusive effect of a less than fair settlement and global release of all claims in another forum.

Unlike ordinary litigation where a defense counsel must bargain with one plaintiffs’ counsel to reach a settlement in a single jurisdiction, in multiforum class actions defense counsel can shop from forum to forum to obtain the best settlement terms for their client. The plaintiff class counsel in one forum actually has an incentive to undercut the claims represented by another class counsel in another forum: the class counsel can get a higher settlement, and consequently a higher fee award, if his settlement includes a release of claims beyond his own forum.

Section I of this article describes the legal and ethical environment in which attorneys engaged in multiforum litigation must practice. Section II lists examples of opportunistic behavior by lawyers within this legal environment. In particular, Section II provides cases to illustrate reverse auctions, forum shopping,[1] filing of sham complaints aimed at precluding claims in other fora, meritless class action suits, race to the courthouse, and other conduct that tends to cast the judicial system or the legal profession into disrepute.

At present, neither the federal nor any state judiciary, which are responsible for promulgating rules under which attorneys practice law, has recognized that multiforum class litigation create a unique set of ethical dilemmas for attorneys with respect to settlements, the award of fees, and the law of preclusion. Some of these ethical dilemmas arise from the current state of the substantive law. Section III discusses changes needed in the substantive law of preclusion and rules of civil procedure to prevent abuses within the legal system. Section IV focuses upon the ethical risk that some attorneys may elevate their own self-interests ahead of their clients and recommends that each state should adopt a new Rule of Professional Responsibility specifically tailored to multiforum practice. This new ethical rule should cover attorneys’ conduct from the point when they first undertake to represent a client in a potential class action matter to the time when the action is concluded. Finally, the Appendix contains our proposed rule, with a comment that follows the rule.

I. Legal and Ethical Environment of Modern Multiforum Litigation

Although lawyers typically think of their professional responsibilities in terms of representing a single party in litigation in one forum, the class action lawyer faces a different legal and ethical environment. A class action proceeds on behalf of all members defined in the class, and all class members similarly situated will be bound by the terms of any settlement or judgment in the class action. In this environment, the attorney representing the plaintiffs in a class action, usually designated the class counsel, has an ethical duty of loyalty to represent the best interests of all class members. In particular, the class counsel cannot ethically favor any one plaintiff or his own self-interest above those of the absent class members.

A lawyer engaged in mutiforum class action practice also faces a unique environment for negotiating a settlement. Unlike the settlement of a lawsuit between two individual parties in which the court will routinely sign a jointly proposed order by both counsel to settle and thereby dismiss a case, the settlement of a class action lawsuit requires a judicial determination of the fairness of the settlement to absent class members.[2] A court’s nondelegable duty to approve the fairness and adequacy of any proposed class action settlement “is not an act of judicial mediation; it is an act of judicial power.”[3] The court must administer class proceedings in a way that safeguards the rights of absent class members and comports with the requirements of due process.

Generally, class members will have the legal right to opt out of any proposed settlement of the class action. Those who choose to opt out of the class action will then have the freedom to pursue their claims individually against the defendants. Those who fail to exercise their opt out rights, either because they want their prorata share of the proposed settlement consideration or simply because they ignored the court notification and allowed their opt out rights to lapse, will be bound by any judgment entered by the court. Such a judgment in a class action will generally have claim preclusive effect, under the Full Faith and Credit Act,[4] on either pending or subsequently filed litigation arising from the same transaction. This preclusive effect will extend to any other forum, both state and federal, in which a plaintiff might file claims against the defendants named in the class action.

Aside from ethical considerations about undercutting viable claims in another forum, class counsel face no other limitations in receiving court approval to release claims outside their fora and bind class members. Federal courts have entered judgments approving proposed class settlements that released both federal and state law claims. For example, in Class Plaintiffs v. City of Seattle, the Ninth Circuit affirmed a federal district court judgment approving a class settlement and release of federal securities law claims.[5] Also, In re Corrugated Container Antitrust Litig., held a federal district court, in approving a class settlement of federal claims, had jurisdictional competence to extinguish state claims that were not pleaded, but which it had pendent jurisdiction to adjudicate.[6]

Similarly, state courts have approved class settlements that released state law, federal law, and even exclusively federal claims.[7] For example, in Kremer v. Chemical Constr. Co., the U.S. Supreme Court held that settlement of federal Title VII employment discrimination claims in a state class proceeding has issue preclusive effect barring subsequent claims raised in federal court.[8] In Nottingham Partners v. Dana, the Delaware Supreme Court affirmed the right of Delaware state courts to enter judgments releasing exclusively federal securities law claims as part of a state court class action settlement.[9] And in Marrese v. American Academy of Orthopaedic Surgeons, the U.S. Supreme Court held “a state court judgment may in some circumstances have preclusive effect in a subsequent action within the exclusive jurisdiction of the federal courts.”[10]

Until the Supreme Court’s recent decision in Matsushita Electrical Industrial Co., Ltd. v. Epstein[11] [hereinafter “Epstein”], the federal courts had placed only one modest limitation on the full faith and credit of state court judgments attempting to release exclusively federal claims: the facts in the underlying state law claims must be identical to those giving rise to claims released or extinguished by the state court judgment. As long as the claims giving jurisdiction to a court arose from the same factual predicate as the claims covered by a settlement, the state courts would have been able to decide the issues on their merits. Consequently, federal courts gave claim preclusive effect to the state court judgment approving the settlement of the action.[12] For example, in Nottingham Partners v. Trans-Lux Corp.,[13] the state class action claims and the released exclusively federal securities law claims both arose from the failure of a corporation to disclose allegedly material facts in a proxy statement. Similarly, the state class claims in Grimes v. Vitalink Communications Corp.,[14] shared a common factual gravamen of nondisclosure of material facts with the federal securities law claims released in the settlement.

Yet the Supreme Court’s Epstein decision eliminated even this modest limitation on one court’s power to extinguish and bar claims in another forum. In Epstein, the Supreme Court affirmed a Delaware state court’s approval of a class action settlement that had the effect of releasing exclusively federal securities claims[15] that differed factually from the breach of fiduciary duty state law claims before it. Unlike Nottingham Partners and Grimes, the federal and state law claims in Epstein stemmed from differing factual bases.[16] The gravamen of the Delaware state class action was that the directors of a Delaware corporation had breached their fiduciary duty by failing to (1) implement a market check mechanism to ensure that shareholders received the maximum value for their shares, and (2) disclose key terms of a proposed merger such as the compensation packages that the corporation’s top officers would receive.[17]

In contrast, the federal securities law class action filed in California in Epstein focused on the acquiring corporation’s behavior: whether the Japanese acquiring firm violated federal securities law by offering either more consideration for the shares of some shareholders than the tender offer,[18] or by offering these select shareholders a different form of consideration than that offered to other shareholders.[19]

By upholding the Delaware class settlement and reversing the U.S. Court of Appeals for the Ninth Circuit, the Supreme Court eliminated the same factual predicate test previously used by the U.S. Courts of Appeal to limit the preclusive effect of class action settlements. The Court instead used the much broader same transaction test.[20] The Court effectively gave every lower court ─ state or federal ─ the ability to enter a judgment approving a (dubious) settlement that could prevent class members from further litigating claims in other fora.

The Supreme Court could have decided Epstein largely as a matter of forum shopping, which placed state courts in the precarious position of having to value factually unrelated, exclusively federal claims.[21] Yet the Court never even addressed the central forum shopping issue at the heart of Epstein: fair representation to the class. In the aftermath of Epstein, state and federal court judges seemed to have unfettered discretion to approve class action settlements subject only to meeting some minimal, poorly defined due process standards of fairness. Because the Supreme Court offered no guidance on what due process means for the approval of class action settlements, we can anticipate that courts will apply differing levels of scrutiny of settlement terms from forum to forum.[22]

Multiforum class actions thus afford unique opportunities for forum shopping and questionable settlements unlike any opportunistic behavior faced by lawyers representing individual clients in single forum cases. The state Boards of Professional Responsibility, which administer the rules of conduct for practicing attorneys, have paid little attention to class action practice. The nature of class actions and recent decisions on claim preclusion, however, create problems for lawyers who wish to conduct their class representation in an ethical manner. These lawyers face the dilemma that other less scrupulous attorneys in other fora can extinguish their cases. Soon the counsel begin to compete to see who can settle first and thereby bind the class members in other fora. The system creates incentives for lawyers to join in the frenzy of bargaining away the class members’ interests before counsel in another forum undercuts the claims that form the basis for their own class representation.

II. Examples of Opportunistic Behavior that Illustrate the Need for Greater Regulation of Multiforum Litigation

The rest of the article can be found at http://michaelguth.com/lawnews/classactions.htm

© Copyright 2004 by Michael A. S. Guth. All Rights Reserved. No portion of this article, including this web page, may be copied, retransmitted, reposted, or duplicated in significant portion without the express written permission of Dr. Michael Guth. Users are always welcome to establish links to this web page or to quote from it freely.

Michael A. S. Guth, Ph.D., J.D., is a constitutional law attorney, legal brief writer, and health care researcher based in Oak Ridge, TN. A web page describing his law practice and other legal writings is available at http://michaelguth.com His current research comprises inefficiencies in health care insurance, pharmaceutical pricing, and best available treatments for Alzheimer’s disease, osteoporosis, and high cholesterol. He has developed and/or taught more than twenty on-line courses at more than a dozen educational institutions in the areas of economics, finance, business strategy, business law, health care administration, politics, and criminal justice. Interested students are encouraged to view his web page at http://michaelguth.com/economist.htm and click on some of the papers and articles he has written.

Ignorance of the law excuses no one. If you are unaware of your law, then you are in for big trouble. To better understand what are your rights and duties, educate yourself.

Issues regarding intellectual property rights are an important topic of discussion as many things revolve around this theme. Knowing what an intellectual property is the first step in our education. The U.S. Department of State defines it as:

“Creative ideas and expressions of the human mind that possess commercial value and receive the legal protection of a property right. The major legal mechanisms for protecting intellectual property rights are copyrights, patents, and trademarks. Intellectual property rights enable owners to select who may access and use their property, and to protect it from unauthorized use.”

This definition gives emphasis on the word protect. Indeed, it is designed to extend protection to the creator of a certain creative work or a product. Legal provisions are installed to give the owner the exclusive right to control access and use of his property. The law provides for specific procedures when a violation of these rights is committed.

Copyrights and industrial property are two categories that make up intellectual property.

Copyright laws provide for the owner an exclusive right to control access of his creative work. Variations may exist with different countries but the basic idea is this.

Industrial property includes such things as patents and trademarks. A patent is defined as a legal grant issued by a government permitting an inventor to exclude others from making, using, or selling a claimed invention during the patent’s term. A trademark on the other hand is a name or symbol secured by legal registration that identifies a manufacturer’s or trader’s product or service and distinguishes it from other products and services.

Any infringement on these rights entitles the owner to a day in court. Filing a lawsuit is a must if you want to be compensated for the damages you have received. Of course you won’t know if you are already being violated unless you know what you’re rights are. There is a great need for us to be familiar with the concepts of intellectual property laws for us to know when we are being wronged and what needs to be done to address that wrong. Like they always say, “Knowledge is Power.”

About the Author

For additional legal information and inquiries about the article log on to http://www.attorneyservicesetc.com

Driving while under the influence, also known as DUI, is not worth it because not only are you incapable of driving safely, but you are also very likely to receive a ticket. While you might think receiving a DUI simply requires you to pay a fee and try to get out of the ticket a DUI is really more expensive than you might have ever imagined.

Receiving a DUI might cost you thousands of dollars, but it may also cost you emotionally, physically, and others will pay as well. So, before you drink and drive you should really consider all of the many costs you might face as well as the effects your actions will have on the lives of others.

First of all, a DUI does cost a lot of money if all that happens is you are pulled over and receive a ticket for driving while under the influence. Your car might be impounded, you will be taken to jail, and you will receive a ticket, as well as other fees and fines that might apply to your specific situation. This will cost you a pretty penny.

Then, there are the emotional costs of a DUI. You will likely feel ashamed and embarrassed, and that is if you just get a ticket. In addition, you might wreck your vehicle or the vehicle of another individual, causing more emotional pain and suffering. Then, if you or others are injured you can count on significant emotional suffering.

Physical costs are likely with driving under the influence because accidents happen more often than not. You might injure or even kill yourself, not to mention others. Imagine how you will feel if you cause yourself to be paralyzed or kill another individual? These are some hefty costs of drinking and driving.

Then, there are the costs to other people. Your family will feel embarrassed and ashamed if you receive a DUI citation, not to mention if you are killed or kill someone else because you chose to drink and drive. Then there is the family and friends of other individuals that you might injure while drinking and driving. They will feel angry and hurt as well.

Obviously, there are a lot of costs associated with drinking and driving; most of them will change your life and the lives of others forever. So, if you want to drink make sure you call a cab or at least have a designated driver to ensure you get home safe and sound. Avoid all of the costs of a DUI and don’t drink and drive.

SearchArticles.Net features over 13,000 articles including hundreds of legal articles. Visit http://www.SearchArticles.Net/legal.cfm

Perhaps one of the most confusing aspects of winning a Social Security (SSA) disability claim is completing the array of forms during the process.

A question you will inevitably ask is, “Does SSA look at my forms and can they alone win or lose my case?”

My experience is that SSA and/or judges don’t usually approve your case based on what you say on the forms. However, they often use what is said in the forms to support a denial of your claim.

This is because if SSA or a judge is going to approve your claim, they will base it on more compelling objective evidence such as medical records and/or treating physicians’ opinions regarding your inability to work.

Unfortunately, I have seen what appeared to be an innocent statement by a claimant be the evidence used by the judge to deny the claim.

The inherent problem you have as a claimant is twofold. First, with all due respect, you don’t know what you need to prove in order to win your case. Second, you have spent the past several months or years consistently downplaying the severity of your medical problems to anyone you thought was listening (i.e. your employer, family, friends, doctors and SSA). Even though you are constantly in excruciating pain or exhausted; nobody wants to be viewed by others as a whiner. Sound familiar?

Studies consistently show that Americans are more productive and annually work longer hours than workers in any other country; consequently, it isn’t fashionable to complain. Instead, Americans “grin and bear it” or we follow the British and keep the proverbial “stiff upper lip.”

All too often, your denial mechanism rears its ugly head when you complete SSA forms. The result is that you consistently overstate what you are capable of doing and understate the severity of your symptoms and limitations. Does this also sound familiar?

The problem is that the aforementioned disability strategy may likely kill your chances of winning your SSA case without you even knowing it.

By following these tips when completing SSA’s forms you should significantly reduce the likelihood of making a serious mistake that comes back to bite you in the you know what!

Tip #1 You’re not Danielle Steele - Please don’t write a Book!

Certainly you remember the advice your parents gave you as a teenager - the more you say, the more its gets you in trouble! This is not the time to become a novelist! This clearly applies to competing SSA forms.

SSA does not give you a lot of room to answer the questions and that is good. Limit your answers to the space that has been provided in the question and do not write in the margins or attach additional sheets of paper.

Always answer the question honestly, but keep your answers brief and to the point.

Tip #2 Presume you are having a bad day when providing answers

Remember, a critical issue in a social security disability case is always what activity level are you capable of sustaining on a regular and continuing basis (i.e. a 5 day work week). The issue is never what you can do for only one day. Clearly, almost everyone is capable of performing some activities for one day such that it would make them appear to be capable of working. Never forget…the issue is always what level of activity you can sustain on a daily basis, week after week.

Why should you assume you are having a bad day? Simply put, if you were back working on a sustained basis, most likely every day would be a bad day. Answering as if you’re having a bad day is not only an honest answer but is also a more accurate assessment of what activity level you can sustain.

Following this tip will avoid the problem of overestimating what you are capable of doing. It will also keep your denial mechanism honest.

Tip #3 The Big Three - Always focus on the “frequency, severity and duration” of your symptoms and limitations

Another critical issue in a social security disability case is your symptoms and limitations (i.e. pain, fatigue, concentration problems, inability to maintain any activity for a reasonable period).

Always remember, you are unable to work due to the frequency, severity and duration of your symptoms and limitations, and not due to a diagnosis.

You should mention all the diagnoses that have even a small impact on your inability to work, but you should use 5% of the allotted space to reference diagnoses and 95% to discuss The Big Three and how they limit not only your ability to work but also your ability to function on a daily basis.

Tip #4 Completely resist the urge to be the perfectionist you are!

Before you became ill you were probably an organized perfectionist who was incredibly productive. Everything in your life had its place; I know it kills you it is not that way now. However, this is not the time to be a compulsive, organized perfectionist! Please don’t use SSA forms as a launching pad to organize your life.

One of the hallmark’s of your inability to work is your concentration problems, memory impairment and brain fog. Your life is now an unorganized mess.

Guess what? SSA needs to see the real you and not a top notch administrative assistant who is articulate and possesses phenomenal organizational and typing skills. Please do not typewrite your answers. Always handwrite them even if your answers become illegible. The clarity of your handwriting and the way you answer the questions tells a lot about the severity of your concentration and memory problems.

Many clients tell me that little by little, it took them days to complete some SSA forms. Your goal should be to have your answers look like it took you days. In fact, if it did take you days, make sure you tell SSA that somewhere on the form.

I have an interesting story for you on this subject. Several years ago I represented a woman who was at one time an outstanding legal secretary. We eventually won her claim before a judge. However, before she retained me and prior to the judge, her claim was actually recommended for approval at an earlier level of review by SSA. Unknown to the client, SSA overturned its own decision and denied her claim.

Why? Because she did a marvelous job typing her answers on the forms. There were no typos and the forms were perfectly organized. A reviewing SSA psychiatrist was so impressed with her work he wanted to hire her! He concluded her memory and concentration problems could not be as severe as she was alleging. His opinion was the forms proved she was capable of performing a simple, sit down job and her claim was denied. We were fortunate to have a judge who overlooked the forms and instead listened to her entire story. However, you may not be so fortunate…so don’t take any chances.

Tip #5 If psychological issues play even a small part in preventing you from working, you must allege them on the forms

Although the primary reason you are unable to work may be due to a physical diagnosis, don’t overlook the psychological issues that often arise after years of dealing with chronic pain and fatigue. You want to win your case anyway you can, whether it is due to physical or psychological problems, or quite frequently, a combination of both.

My experience in successfully representing chronic pain and chronic fatigue clients all over the country suggests that psychological issues are frequently a significant factor in why many people are unable to work. To totally ignore this fact can be detrimental not only to your well being, but may also cause you to lose your SSA disability claim!

A Social Security judge recently told me that he hates it when a disability attorney “fails to give me several doors to use if I want to approve a case.” He believes that using only one door for claim approval is tantamount to the “attorney driving their client off a cliff.” I totally agree with the judge. Please don’t let this happen to you; you have too much at stake!

What did the judge mean? Simply put, judges like to have several medical conditions to choose from if they want to approve your claim. For example, if a judge believes your claim is not strong enough to be approved based only on your physical diagnosis, they want the option to approve your claim based on another diagnosis, perhaps psychological.

What prevents the judge from simply approving it based on a psychological diagnosis? The problem is you never told SSA on any of the forms you completed that you believed a psychological condition was at least in part responsible for why you can’t work!

Thus, a door that could have used to approve your claim does not exist; consequently, the judge has no choice but to deny your claim. This scenario is terribly unfortunate because your claim was denied when the judge was looking for a way to approve it!

The solution is to tell SSA early, often and consistently that you believe a psychological diagnosis plays a part in your inability to work. It is fine to state that it is “secondary to” or “as a result of” dealing with your chronic physical symptoms and limitations.

At the end of the day, you want to win your case anyway you can. I know this is true because all over the country I see it in my client’s eyes on the day of the hearing. SSA’s monthly benefit check and health insurance benefits mean the same to you regardless of what diagnosis was used to approve your claim.

Remember, proper preparation as well as understanding what you need to prove and how you need to prove it are critical to winning your case. By following these tips, you should avoid making a mistake that you later regret.

Scott E. Davis is a social security disability attorney in Phoenix, Arizona and Las Vegas, Nevada. Mr. Davis represents clients throughout the United States. Although Mr. Davis has experience representing clients with a broad spectrum of physical and/or psychological disorders, the majority of his disability practice is devoted to representing individuals with chronic pain and chronic fatigue disorders. In almost every case, a fee is charged only if his client obtains benefits. Mr. Davis invites your questions and inquiries regarding representation via telephone (602) 482-4300, or email: info@scottdavispc.com.

The Florida Legislature in 1988 revised a law that makes car manufacturers responsible for replacing defective vehicles or refunding consumers’ money if the vehicle applies to certain conditions set forth by the Legislature. This law is commonly known as Florida’s automobile ‘Lemon Law,’ or popularly known as lemon law Florida.

Most of the states in United States protect consumers from vehicles with manufacturing or other defects. The law stated to prevent consumers from defective vehicles is known as Lemon Law. Lemon law Florida applied to new or demonstrator vehicles sold or long term leased in Florida. Lemon law Florida enables consumer to get repaid within a certain period of time if the vehicle turns out to be a lemon. According to lemon law Florida a vehicles is termed to be a lemon if it calls for multiple repairs in a short span of time. Usually a lemon car works cheaply or breaks down several times immediately after the purchase.

Lemon law Florida applies to only new or demonstrator vehicles sold in state of Florida. Lemon law Florida also applies to vehicles leased in Florida, if such vehicles are lease-purchased. Lemon law Florida is also applicable to vehicles in cases where lessee is responsible for the repair of the vehicle. Lemon law Florida does not cover trucks weighing more than ten thousand pounds gross vehicle weight, off-road vehicles, vehicles which are purchased for purposes of resale, motorcycles and mopeds, or the living facilities of recreational vehicles.

Information on lemon law Florida can be obtained from various websites that provide information about automobiles in Florida or United States. Consumer guide for lemon law Florida can be obtained from hotline number 1-800-321-5366, or 1-850-488-2221 for consumers outside Florida. This phone line should be answered between the hours of 8:30 a.m. to 4:30 p.m., Eastern Time. To file a suit for lemon law Florida one should consult lemon law attorneys who specialize in lemon law for Florida. Consumer guide to the Florida Lemon law explains consumer rights, gives steps to follow to resolve problems and contains a toll-free number for the Lemon Law Hotline and a form the consumer can use to notify the manufacturer of chronic defects and time out of service for repair.

Lemon law Florida covers defects or conditions that impair the use of the automobile. The automobile can also be proved to be hazardous or unsafe for use. According to lemon law Florida any defects pertaining to the automobile should be duly reported to the manufacturer or any authorized servicing agency. Lemon law Florida states the first 24 months after the purchase of any automobile as Lemon Law Period for that automobile. If the manufacturer fails to conform the vehicle to the warranty after a reasonable number of attempts to repair these defects, the law requires the manufacturer to buy back the defective vehicle and give the consumer a purchase price refund or a replacement vehicle. The law does not cover defects that result from accident, neglect, abuse, modification or alteration by persons other than the manufacturer or its authorized service agent.

Earl Powers, US Lawyer and Lemon Law Attorney expert - focusing on Lemon Law Lawyers and Lemon Law

According to Meislik & Levavy, the underlying principle behind child support is that “children of divorced parents have a right to be supported in accordance with the standard of living they had during their parent’s marriage. The amount is based upon what an intact family with a certain level of income would spend for their child.”

How do courts determine how much you pay in child support?
Each state has its own guidelines that courts must follow when determining child support payments. Your family law attorney should be knowledgeable about those guidelines, which will allow them to provide you with a preliminary calculation. However, these are merely “guidelines” and not “rules.”

How long do you have to pay child support?
In most cases, child support payments stop when the child graduates from high school or completes four years of college. However, depending on the situation and where your divorce takes place, these timelines may differ. Some states require you to continue paying child support until the “child” is 21- years old. Other factors might include whether the child is still living with the other parent, has been married, entered the armed forces or passed away. After a certain age, your child may have the option to be emancipated, in which case you would no longer be required to pay child support. However, regardless of how often you and your child see each other (even if not at all), you are still required to pay child support until one of these other factors have affected the arrangement.

Where can you find child support laws in your state?
The Administration for Children and Families (ACF) within the Department of Health and Human Services (HHS) is responsible for federal programs that promote the economic and social well-being of families and children. You can find their agencies listed by state here. New Jersey parents can contact Family Lawyers, Meislik & Levavy or check the child support guidelines at the NJ government resource, here.

In Part One of this article we took a look at some minimum recommendations for asset searches as a recovery medium. This discussion is based on the assumption that an asset search has already been determined to be sanctionable by, for example, a loan in default, a judgment that has been rendered, a court order obtained for the release of credit information in cases that are not clearly defined under the FCRA or “extended consent” given in a creditor/debtor or employee - employer relationship.

As Part One suggested, to properly identify a non-corporate subject, fraud examiners in non-law enforcement environments should take the following steps:

* Obtain credit reports form the three major credit bureaus, per FCRA requirements

* Obtain social security traces form the three major credit bureaus.

* Obtain address update/credit report header information from the three major credit bureaus.

* Match the information obtained through the independent sources to the information presented by the subject of the asset search.

Part One also provided suggestions for determining assets, including real property ownership, vehicular searches, vessel ownership, aircraft ownership, and banking information. Following is additional financial and business information that should be gathered, as well as liability-related data that impacts the subject’s net worth in a recovery action.

Financial Information

Credit reports should be obtained from all major credit bureaus in order to completely determine the subject’s credit worthiness or credit status. The Federal Home Loan Mortgage Association (”Fannie-Mae”) determined several years ago that a minimum of three national credit bureau repositories should be accessed to develop credit information prior to the qualification for a mortgage loan. While this is the standard, many companies do not provide this information in the pursuit of the asset search, and limit their request to only one major credit bureau. Some difficulty also exists with respect to the investigative community’s lack of access to major credit bureaus, and many credit reports procured for investigative purposes are, in fact, procured through third- and fourth-party blind sources.

Credit bureau-based research agencies are usually your best source for credit and financial information, as well as banking data, since their primary focus is in the credit community and understanding the limitations of the credit system, as well as knowledge of “better” access to the credit bureaus. This assures their continued success in operating their business.

Credit reports are important not only from the standpoint of providing identification information, additional addresses unknown to the client, and/or additional name variations in the form of aliases and/or akas, but they also provide an almost up-to-the-minute window of credit activity pertaining to the subject. This gives an impression of the subject’s credit worthiness with respect to paying off the obligations the subject is currently faced with, not to mention, in many cases, his or her current whereabouts.

If an overwhelmingly favorable credit report is generated on the individual, chances are strong that the subject may be hiding assets, and a more aggressive collection and/or litigious pursuit is justified. If the individual’s credit is in a “pre-bankruptcy” mode, chances are strong that the lack of discovery of available assets, which would affect the decision whether to charge-off or litigate the matter, is more easily palatable by the analyst.

Credit histories also contain adverse public records that may not have been developed throughout the course of the search, since the primary search parameters are on an exact name basis, and usually a specific jurisdiction basis only. The benefit of credit reporting agencies is that they procure information from large repositories, which contain information from jurisdictions that may not necessarily be germane to the original asset search request.

Corporate Affiliations

A determination of an individual’s Officer/Director and/or Registered Agent status within a corporation is important to determine whether or not that individual may own stock in that enterprise, which can also be determined somewhat by a search of applicable public records within certain state jurisdictions. Some states do not provide public access to information with respect to stock ownership in corporations, yet many states do provide information with respect to the Officer/Director and/or Registered Agent status of an individual.

These searches are conducted at the Secretary of State level, and if the information is developed, certain other information with respect to the corporate enterprise may be provided. This includes the status of the corporation (i.e., good standing, suspended, or forfeited), the filing date and filing numbers of the corporate enterprise, and the subject’s affiliation with the enterprise.

Many states require a secondary search level to be undertaken, which is the procurement of a “Statement of Officers/Directors” (ET SEQ.). There are database repositories, which provide President and/or Registered Agent information.

However, most searches that develop Officers and Directors must be conducted by hand at the applicable state jurisdiction.

Security & Exchange Commission files provide information on individuals who own more than 10% of a publicly held or publicly traded corporate entity. This search is conducted by database through a few private companies, and the searches are, by and large, undependable. The searches conducted directly through the SEC, which are extremely time-consuming, are the only valid searches to rely upon within this instance, and for all intents and purposes, inside information with respect to this file indicates that it is roughly 80% accurate and complete.

Partnerships

Searches for partnerships, be they limited partnerships, general partnerships, or specific partnerships, are conducted at the state and local jurisdictional levels, depending upon the state. In California, for example, searches at the California Secretary of State’s Office identify “LP-1″ Statements, which are filed by the general partner of the limited partnership, and identify not only a name reservation, but also the name of the general partner of the business. This one-page form is not a full-blown search with respect to the partnerships that could pertain to an individual. The search conducted at the county or parish jurisdictional level would identify all general partnerships, which would be required to be recorded and limited partnerships which own real estate.

Uniform Commercial Code Filings

While a Uniform Commercial Code Financing Statement could be primarily viewed as a lien instrument, in the context of an asset search it should be addressed as more of an asset determinator. From the perspective of a UCCs relationship to an asset, when an individual is identified as a debtor, usually the debtor’s status pertains to the securing of personal property for a business that may not have been disclosed throughout the course of additional research.

The age of the Uniform Commercial Code Financial Statement (they expire after five years in 48 states) would determine the extent of possible equity in equipment and fixtures, which may pertain to an individual and/or his business. In the case of a manufacturing facility, with depreciation schedules as they are, clearly a 4 -yearold UCC-1 on a piece of equipment that was purchased new at the time the UCC was filed would still retain equity, and thus constitute the discovery of a “hidden” asset which may be liquidated.

There is also a little known side of the UCC spectrum that is often ignored by examiners. This is searching for “Secured Party” status on a UCC-1. Clearly, this would be where the subject is, in fact, the Creditor on a UCC-1, with the implications of the discovery of this type of hidden asset quite obvious. Many states do not provide “Secured Party” status indexing, and thus, while it is not available in most states, it can be expected within certain state jurisdictions where the asset search will be based.

Sole Proprietorship Entities

A search should be conducted of the Fictitious Business Name and/or Assumed
Name Index of the applicable county or parish level of jurisdiction to determine if the subject’s name appears as a Registrant, or Declarant of a Fictitious Business Name or Assumed Name Registration. The discovery of these items usually constitutes the discovery of additional bank account search possibilities, as well as entities and/or enterprises that may be unknown to the institution or client.

Other Assets

In many instances, an individual could hold offshore assets in the form of trusts, partnerships, and so forth. A thorough search of applicable public records within the jurisdictions germane to the activities of the subject can often reveal information, which might lead to the discovery of these offshore assets. This particular type of asset search is highly sophisticated, and should be left specifically to agencies that have demonstrated high levels of competence in international asset research. The trustworthiness of the agency should be scrutinized before entering into a contract.

LIABILITIES

Litigation

A search should be conducted of the applicable jurisdiction to determine the extent of possible litigation involving the subject from both current and prior perspectives. A standard expectation for the research should be primarily an index review of the cases, which are outstanding, and if required, an analysis to determine the extent of “pending” lawsuits, which, as of the date of the report, remain unresolved. The search should be conducted on a ten-year basis, with the pending actions focused within a five-year window.

Federal, State, and Local Tax Liens

A search of the applicable jurisdictions should be made in the Recorder’s Office to determine the extent of federal, state and/or local tax liens that might impact the net equity position of the subject. The existence of, for example, a $150,000 federal tax lien could wipe out all equity positions enjoyed by the assets discovered throughout the course of the research. Thus, the discovery of this liability is critically important in the assessment of the subject’s net worth and ability to pay.

Bankruptcies

A search should be conducted through applicable jurisdictions germane to the residences and/or activities of the subject of the U.S. District Bankruptcy Court records for a ten-year period. The purpose of this research is to determine if the subject has established a pattern of filing bankruptcy, and/or possibly (in the event a bankruptcy is discovered) to scrutinize the assets and/or creditor’s list to determine if there was fraudulent misrepresentation of assets and/or liabilities at the outset of the credit relationship with the institution.

Judgments

Searches for Abstracts of Judgments, or Judgments, are usually conducted in the applicable jurisdiction’s Recorder’s Grantee/Grantor Indices. The searches should reflect primary judgments that were filed in the applicable jurisdiction by the court, and can be included in the research for pending and/or previous lawsuits at the court jurisdiction level. The Abstract of Judgment concept is that a particular judgment is “extracted” from the court records, and “abstracted” to the county jurisdiction, in order to encumber items of personal and/or real property which are identified, and are targeted for attachment and liquidation to pay off the claim. Plaintiff actions can be considered potential assets, and should not be overlooked.

Miscellaneous Liabilities

Additional searches should be conducted on a wide-area basis, both at the state level (Secretary of State) and the county or parish jurisdictional level, to determine if additional liabilities exist from the standpoint of judgments, tax liens, or county-based UCC Financing Statements. These identify specific types of assets such as crops, timber, and inventory. They are not usually found at the state level UCC search, and most agencies do not provide them unless requested to do so. This search is more specifically covered in the following Intelligence section.

Intelligence

In any good asset search, the fraud examiner should develop intelligence throughout the course of the research that would refer to information as specified above concerning additional names on real estate ownership, transferee names, and so forth. Additional modules of research that should be conducted include criminal histories on the individuals targeted within the asset search, as well as a search for evidence of known connections with other business enterprises and/or individuals with whom regular associations are engaged.

There are multiple methods of access to this type of information, not the least of which would constitute a surveillance (highly unusual in an asset search) which would identify the comings and goings of the subjects at hand, and would assist in the identification of the “intelligence” type of data. Additional information is developed with respect to the assets, in order to assist in the determination of the market value so that a net equity figure can be derived for one asset, or a group of assets, from all levels.

To delve into the methods of this type of discovery would be to get into the mind of the fraud examiner working the case, and shall not be addressed in this article, but should be included in an overview process in the Intelligence Section of any asset search report.

Some other instances where information would be helpful include areas where other tangible net worth is discovered, such as intelligence provided by developed sources close to the subject regarding stamp collections, gold coin collections, cash under a mattress, and so forth. This information is highly inconsistent within the context of a normal asset search, and, while hoped for, should not be expected as a matter of doing business with a particular fraud examiner.

Miscellaneous Information

It is important to understand that today we are faced with many research possibilities from the standpoint of hands-on jurisdiction research versus database research. It is important to specify whether or not database research is, in fact, acceptable, or if hand research is required. Extensive experience in FDIC and FSLIC work for over ten years dictates that the standard of research for these agencies, as well as Resolution Trust Corporation until recent months has been that only hands-on work is acceptable in an asset search.

It must be understood that while database search capabilities appear seductive, many lack the depth and breadth to provide a sufficient search upon which decisions should be made, and a case should be analyzed. There are technical problems with database research that shall not be delved into here, but it should be generally understood that reliance only upon database searches does not give the complete picture, and may end up providing inadequate information upon which an improper decision will be made.

Close attention needs to be paid to understanding the differences of a hand search versus a database search. The common rule of thumb should be the clear understanding that when a search is purchased from a database company, what the purchaser is really buying is the amount of money that has been invested in the computer’s search logic, not necessarily the information provided by the jurisdiction which the company purchased. A hand search, on the other hand, is conducted by an individual at the applicable jurisdiction by searching records provided by the jurisdiction, which are as up-to-date as possible.

Database research provides information that is usually not updated within thirty to sixty days. It is also important to understand that database information is usually based upon the “first-cut” data/magnetic tapes provided by the jurisdiction to the database firm, and may not include updated, completed or extricated information that is critical to the determination of whether or not a record exists on file, and/or is in fact reportable under applicable statutes within the applicable jurisdictions. The most recent legislation that specifically identifies the limitations and requirements of database service companies include California Assembly Bill 1629, Chapter 1194, Public Law91-508 (FCRA), the CCPA and various other local, state and federal statutes.

Conclusion

While these guidelines give insight into modules of research which should be integral to any decent asset pursuits, it is important to understand the capabilities an integrity of the firm you’re using to conduct some or all of the research with you, or for you. Clearly, while the use of databases is on the rise, it remains good practice to consistently test the information you receive against independently known or researched information for its depth and accuracy.

This investigative attitude will not only help you to weed out the questionable information, but will help you to more clearly establish your expectations with whomever will be assisting you in determining if discoverable and attachable assets exist, which can be attributed to the subject of your inquiries.

Thomas C. Lawson, CFE, CII is President and Founder of APSCREEN International, the world’s leading full service Consumer Reporting Agency since 1980. Lawson is called “one of the real pros” as he has helped to reshape laws including those for employment screening, permissible credit reporting, asset discovery and fraud examination. Tom is a Life Member of: ACFE, ASIS, SHRM, PIHRA, PNRRA, PRRN, CII, WAD, WIN, FCAOC and OCEMA.

The rush to file bankruptcy ahead of the new bankruptcy law over. Now what? Did you miss the boat if you didn’t file bankruptcy before the new law went into effect?

Absolutely not. Although the new bankruptcy law has made it much more difficult to file bankruptcy, most attorneys are finding out that the new bankruptcy law is manageable and filings are on the rise.

One of the most confusing parts of the new bankruptcy law is the bankruptcy means test.

In an effort to stop bankruptcy abuse, Congress decided to implement a step to the bankruptcy process called the “bankruptcy means test”.The new bankruptcy law requires a test to be performed by every debtor prior to filing bankruptcy. The actual test is alot like doing your taxes. The means test revolves around the median state income for the state in which the debtor will file bankruptcy.

The bankruptcy means test is used to determine what type of bankruptcy a debtor can file. The bankruptcy means test is an attempt to make chapter 7 available to only those debtors who absolutely need to file a chapter 7 bankruptcy. Most people trying to file bankruptcy want to try to file a chapter 7 bankruptcy which can wipe out most debt quickly; a chapter 7 case is usually completed in about 90 to 120 days with no required repayment plan. The other type of consumer debtor bankruptcy is a chapter 13 bankruptcy which requires a debtor to make repayments to the bankruptcy court over the course of 3 to 5 years.

The means test is designed to weed out those people who don’t really need to file a chapter 7 in the hopes that more people will have to file a chapter 13 bankruptcy and pay all, or a portion, of their debt back to their creditors through a court ordered repayment plan. Remember, the new bankruptcy law was funded by creditors so it only seems logical that the law would encourage the repayment form of bankruptcy.

The actual means test can be quite simple if a debtor is below their median state income. If a debtor is below the median income for their state, the debtor can file a chapter 7 bankruptcy. Debtors who exceed the median income may still be able to file a chapter 7 bankruptcy but they must complete several additional steps in the test that are far more complicated. If a debtor fails the means test, the debtor is not prohibited from filing. However, a debtor who fails the test cannot file a chapter 7.

To find your median state income and learn more about the new bankruptcy law, visit bankruptcyhelponline.org.

Jameson Joyce is a legal writer for legalhelponline.org and Direct Lex, the global legal resource solution.

In holding a driver’s license, a person is agreeing to be a good driver: not reckless and not negligent. However we know that others are often not as careful as we could hope. Other times, an accident can be caused by vehicle malfunction, bad driving conditions or road layout. If you have been in a car accident and wish to pursue your case in court, you as the plaintiff will need to show the court that the defendant caused the wreck through failing to follow driving law and that this breach of duty caused the injury that you the plaintiff sustained in the accident.

In court, you can file suit against the other driver for various reasons. If the accident left you disfigured or scarred or injured, the defendant must pay for your medical expenses as well as those that a doctor feels will arise in the future and you could also be compensated for the emotional suffering caused by injuries. If you are injured and should you win the suit, you should be compensated for permanent disability, pain, emotional anxiety, medical expenses and surveillance, lost wages, lost work or earning capacity, loss of consortium or society, and household services you can’t take care of while you are injured.

If the defendant driver was not just negligent but reckless, then they may have to pay more. Reckless driving includes speeding, excessive lane changing, not signaling intent to change lanes, changing lanes when there is no safe way to move, passing on an emergency lane or the shoulder, and drunk driving. Drunk driving cases are especially horrifying. An accident lawyer will tell you if you should file suit not just against the drunk driver but also the server or business that gave the driver so much alcohol.

There are special cases which are caused by a defect in the car of a driver. If a defective product caused the accident, then the manufacturer is responsible for the negligence.
GA

If you have more questions, contact a car accident lawyer or read car accident news at http://www.hugesettlements.com

About the Author

None

Want to buy an acre on the Moon? Perhaps a stunning Carpathian Mountain vista which overlooks the famous Copernicus Crater? You’re in luck. Dennis Hope of the extraterrestrial real estate firm, Lunar Embassy, is selling one acre parcels for just $19.99. And should you happen to splurge and become the proud owner of some prime lunar real estate, then I would like to sell you a piece of the Brooklyn Bridge.

Never mind that Mr. Hope has never set foot on the lunar surface. According to the Lunar Embassy website, current space laws serve only to prohibit nations from appropriating the Moon, Mars, and other celestial bodies, leaving private individuals and entities free to claim legal ownership on a first-come, first-served basis. But don’t load-up the wagons quite yet.

The 1967 Outer Space Treaty (OST), described by some as the “Magna Carta” of space law, is the primary document which governs outer space activities. It is best known for the “common heritage” concept which turns outer space into a gigantic commons for the benefit of all mankind. Much like the common areas of homeowners’ and condominium associations, outer space can be “used” by all of mankind. But as to ownership rights, Article II of the OST prohibits national appropriation of outer space, including the Moon and other celestial bodies, by means of use, occupation, or otherwise.

In a common law society, if a country cannot claim sovereignty over outer space or a celestial body, then it is impossible for that same country to confer outer space property rights to a private individual or enterprise. As a matter of principle, a private individual or enterprise cannot do what the country that it belongs to cannot do.

A conflict arises, however, when “use” begins to look and feel like appropriation– the acquisition of property with the intent of ownership. Take President Bush’s initiative to build a lunar base to serve as a platform for future missions to Mars. The United States will obviously pick the best location on the Moon to build the base and will occupy this location on a first-come, first-served basis. No other country or private enterprise will have access to the land underneath the base for as long as it is operational. Although the United States cannot claim legal ownership to the land underlying the base, some will question whether their “use” is really a de facto territorial claim. When a nation operates a facility in one particular location for an extended period of time, the end result becomes indistinguishable from territorial sovereignty.

If a private enterprise were to construct a permanent housing project on the Moon, the same challenge could be made that their “use” is also a de facto territorial claim to the underlying land. But if the homes were designed to move from location to location, like a mobile home, then the challenge would have less credibility. The mobile home would be treated as personal property, like a car or boat, instead of real estate which generally signifies land ownership.

Constructing condominium or office units in free space and allowing these units to orbit Earth would also lessen the chance of a de facto territorial claim. The private enterprise responsible for their construction would still retain ownership over the units, but like all objects launched into outer space, the nation of registry would retain legal jurisdiction under Article VIII of the OST. If, for example, the nation of registry for each unit was the United States, the laws of the United States would preside over each unit and its occupants.

The private enterprise could finance the project in advance by selling space to private individuals and corporations. The inhabitants would hold title to their living or work space (much like holding title to a mobile home) and pay a monthly fee for life support and maintenance. It goes without saying that the marketability of such units would depend upon a reliable means to ferry occupants to and from Earth on a regular basis.

Once established, however, the list of potential buyers could include pharmaceutical companies, tech manufacturers, time-share moguls, casinos, and even financial institutions seeking various nations of registry that have favorable tax laws. Imagine a tax haven in outer space. Numerous “offshore” banks and asset protection corporations would be clamoring for office space.

The opportunities to make money in outer space are certainly real and should begin to evolve in the not so distant future. But until the popular real estate adage, “location, location, location,” incorporates space jargon like prime orbital track, picturesque craters, and oceans without water, keep your $19.99 firmly in hand.

Attorney Aaron S. Thiel is an avid space law enthusiast and published author. Mr. Thiel has written his latest novel, The Payload, to captivate readers with issues relevant to today’s Mars rover missions and not-so fictional scenarios that will thrill and excite the imagination. The book provides fast paced suspense, meticulous and intelligent research, fascinating detail, and a surprising twist in the end. To learn more about the author and his writings, please visit his website http://www.aaronsthiel.com or his blog at dutchbennettnovelseries.blogspot.com