Welcome to the Spring 2013 edition of the Golan & Christie Newsletter. In this issue, we are tackling issues that are important to your business-- and to you as an individual.

PROTECTING YOUR WEBSITE

Your website gives customers valuable information, a place to explore your products and services and, if you engage in e-commerce, a place to buy. Almost every website owner has e-mechanisms in place to protect against hacking and unwarranted intrusions. But you should also protect the creative and unique aspects of the site. 

ESTATE PLANNING ACROSS STATE LINES

Estate planning professionals are finding that clients are becoming increasingly connected with two or more states, either by maintaining residences or investment property in multiple jurisdictions.

FORM I-9 REQUIRED FOR ALL NEW HIRES, NOW REDESIGNED

All employers, regardless of size, are required to have all new employees fill out a Form I-9 within three days of the employee’s start date.

Golan & Christie is your trusted partner in more ways than one: We provide counsel on specific issues, certainly. But we also take a look at the big picture to see how else we can best help you succeed overall. It’s a simple, yet powerful philosophy, one we strive to live by every day.

-Stephen L. Golan
 Managing Partner

Your website gives customers valuable information, a place to explore your products and services and, if you engage in e-commerce, a place to buy. Almost every website owner has e-mechanisms in place to protect against hacking and unwarranted intrusions. But you should also protect the creative and unique aspects of the site.

Case in Point:

Recently, Golan & Christie represented a client who sells logo-imprinted promotional products. The client spent years creating original design and content to draw in customers. A competitor seized the entire website, changed a word here and there, then uploaded the entire content to its own website. Because our client had taken appropriate protection measures, we were able to shut down the competitor’s site, recovering both damages and attorney’s fees. Here are some important steps to protect your own website:

Step 1: Protect Your Copyrights

Copyrights protect creative, non-utilitarian works fixed in a tangible means of expression. You own the copyrights in the original narratives, photos and graphics on your website. You don’t have to include a copyright notice on your website but, when you do, you give notice to others of your rights. Copyright notices must contain either the copyright symbol (©), the word “copyright” or its abbreviation (“copr.”) and the author’s name. The notice may also include the year of creation.

You do not have to register your website with the United States Copyright Office to create your rights, but registration has two major benefits. First, it gives the presumption that the copyright is valid. Second, if someone copies your website after you register it, you can seek statutory damages ($30,000.00 to $150,000.00 per infringement) and the recovery of your attorneys’ fees. Statutory damages come into play when the actual damages are minimal.

Step 2: Protect Your Trademarks

Trademarks (or “marks”) are source, service, or product identifiers. Trademarks include anything that distinguishes the user’s goods or services in the marketplace. As long as it fits within certain criteria, you can register a name, logo, tag line, color or even sound associated with your business.

Federal Registration. The benefits of registration with the United States Patent and Trademark Office include: (i) nationwide rights without actual use in all areas; (ii) constructive notice of rights in the mark; (iii) rights become incontestable after 5 years; and (iv) federal court jurisdiction for litigation. Federal registration of the mark allows the owner to use the (®)symbol.

State Registration. Many states have systems of registration for marks used only in the state. The state systems do not usually involve an examination process. The benefits of a state registration are limited but can help establish the use of marks that are not appropriate for Federal Registration.

As with copyrights, registering your trademark gives you a larger range of remedies in the event of infringement, such as punitive damages for willful infringement and attorney’s fees.

Step 3: Other Considerations

Terms of Use. Almost every website has Terms of Use. However, if you copied the terms from someone else’s website, you could be making yourself vulnerable to unintended consequences. Terms of Use are not “one size fits all”. For instance, certain disclaimers make sense in one type of business and destroy a customer’s trust in a different one. The failure to properly draft Terms of Use can work against you by failing to limit your liability or promising something that is not appropriate for your business.

Privacy Policy. Almost every website has a Privacy Policy. Privacy policies should be designed to protect the privacy of your customer while protecting you from promising too much. Certain industries, such as healthcare, require privacy by law. In some industries, custom and usage may dictate binding privacy policies unless they are disclaimed. An inappropriate Privacy Policy can expose you to breach of privacy claims or damage your credibility with your customers.

Click-through Agreements. E-commerce depends on Click-through Agreements. Historically, the number of customers who actually read them might be low. Even so, a proper Click-through Agreement should have all the attributes of a written contract, and shouldn’t be overbroad or burdensome to you or your customer because that could render it unenforceable.

Contractual Terms and Conditions. Many businesses post Contractual Terms and Conditions on their sites. Your written agreements and the posted Contractual Terms and Conditions should be in synch. If not, you risk losing the enforceability of your agreements. For instance, if you fail to establish the link between the written agreement and the posted Contractual Terms and Conditions, you could lose the ability to enforce one or the other. Or, if the written agreement and the posted Contractual Terms and Conditions contradict each other, they could create an ambiguity that would be interpreted against you.

Links. If you post links to other websites, be sure to do so the right way. For instance, some YouTube videos can be imbedded in your website and some cannot. If you imbed a video without permission, you could open yourself up to an infringement suit.

For more information or to have your website reviewed on a flat fee basis for recommendations, please contact Beverly A. Berneman, (312) 696-1221, baberneman@golanchristie.com

Estate planning professionals are finding that clients are becoming increasingly connected with two or more states, either by maintaining residences or investment property in multiple jurisdictions.

Since different states may have different laws that apply to residents of that state—as well as non-residents who own property within the state—it is imperative that your attorney be fully informed of your state connections.

The concept of “domicile” is critical to determining how state laws apply. “Domicile” refers to the state where an individual last maintained his or her principal residence. If you wish to establish a domicile in a particular state, it is necessary that you maintain as many ties with that state as possible. Examples of proof of domicile are: being present in that state for a majority of the year, voting in that state, maintaining a residence, or having a resident driver’s license.

Be Compliant with Estate Laws in Each State

If you have significant ties to more than one state, it is also important that your estate planning documents conform to the laws of each state. For example, although Illinois law requires two witnesses to a will and does not require that a living trust be witnessed, Florida law requires three witnesses to a will, as well as a living trust. Consequently, if you are considering establishing a residence in Florida it is important that your estate plan meets the requirements of Florida law. Similarly, if you are present in a state other than your primary residence, it is wise to have a power of attorney that conforms to the secondary state’s law. We often advise clients who spend at least two-to-three months of the year in another state to keep with them that state’s forms of Power of Lines Attorney for Health Care and Power of Attorney for Property.

The issue of an individual’s domicile will also affect how estate tax or inheritance tax laws are applied. Some states, such as Florida, have no estate or inheritance taxes, while other states frequently tie their estate tax rates to the credit that was allowed under the Federal estate tax laws prior to 2005. In the latter case, the exemption from the tax depends on the individual state, but can range from $1,000,000 to $5,000,000. The impact of the state where residency is established can be quite significant.

Avoid Unnecessary Costs

In addition to the issue of physical presence, maintaining real estate in another state can cause problems. If the real estate is titled in the name of an individual, it will necessitate having a probate estate in the state where the property is located upon the owner’s death, even if the owner is a resident of another state. Obviously, the need to open an additional probate estate results in significant additional cost and inconvenience. This can be avoided if the owner has executed a revocable living trust and the title to the real estate is held by the living trust. An alternative means of avoiding this problem is to have the real estate owned by a limited partnership or limited liability company.

By having your estate plan reviewed periodically, your advisors can assist you in taking steps to insure that your objectives are carried out if you become disabled or die, and that the costs involved, both probate costs and taxes, are minimized regardless of how many different states are involved.

All employers, regardless of size, are required to have all new employees fill out a Form I-9 within three days of an employee’s start date. The purpose is to confirm that all new hires are legally authorized to work in the United States. Although the process for filling out the form seems straightforward, the potential penalties for completing it incorrectly, or for failing to use the form at all, can be severe.

In addition to penalties and fines for paperwork violations, employers (including executives and human resource managers) can pay even bigger fines and potentially face jail time for employing someone who is not authorized to work in the U.S. On the other hand, if an employer does not follow the exact instructions regarding which types of documents are proof of work authorization, or an employer subjects some employees to more scrutiny than others, they risk being liable in a discrimination claim.

The U.S. Department of Homeland Security has recently revamped the form in an attempt to make compliance easier. Effective March 2013, all employers must use the new form, which now has a 2016 expiration date and can be found online at: http://www.uscis.gov/files/form/i-9.pdf.

The new form differs significantly from prior versions: To make the process more user-friendly, seven pages of instruction have been added to the two-page form.

If you need help with any employment issues, contact Laura A. Balson, (312)696-1351, labalson@golanchristie.com or Margaret A. Gisch, (312)696-2039, magisch@golanchristie.com.

The Family Medical Leave Act (FMLA) applies to all businesses with fifty or more employees. As anyone who has dealt with an FMLA leave can tell you, the rules about which employees qualify, which circumstances justify a job-protected leave, and how the leave is tracked, can be complicated. A detailed handbook policy, reviewed for accuracy by an employment attorney, is a great start to tackling the complexity.

Recently, the Department of Labor made several changes to the FMLA regulations.

Effective March 8, 2013, FMLA regulations include military caregiver leave for veterans, qualifying exigency leave for parental care, and a special leave calculation method for flight crew employees.

As a result of the changes, employers are now required to update their FMLA posters. A new, free version of the required poster can be found here: www.dol.gov/WHD/regs/compliance/posters/fmlaen.pdf.

It is also a good time to review your FMLA handbook policies, to make sure that they do not conflict with the changes.

Matt Bachochin’s practice at Golan & Christie will focus on commercial and business litigation. Prior to joining Golan & Christie, Mr. Bachochin was an associate at Oltman & Maisel, P.C. and Paul B. Wharton & Associates. Mr. Bachochin has served as lead counsel in more than 30 jury trials and more than 400 arbitration hearings. Mr. Bachochin spent nine years working in sales, marketing, and advertising before attending law school.

Mr. Bachochin is a member of the American Bar Association, Chicago Bar Association, and is a Chair Certified Arbitrator for the Cook County Mandatory Arbitration Program. Mr. Bachochin earned his Juris Doctor from The John Marshall Law School in 2007 and graduated from Michigan State University with a degree in social science in 1994.

Erin Thompson’s practice at Golan & Christie will be as general corporate counsel, including the full range of corporate, real estate and transactional matters. Prior to joining Golan & Christie, Ms. Thompson was an associate at Goldberg Kohn, where she developed expertise in commercial finance law. Ms. Thompson was the recipient of the federal government’s Presidential Management Fellowship, which led her to spend her first year out of law school working with the USDA Forest Service as a regulatory specialist.

Ms. Thompson is a member of the Illinois Bar Association and the Chicago Bar Association, and is admitted to practice in Illinois and New Mexico. Ms. Thompson earned her Juris Doctor from the University of Virginia School of Law in 2010 and graduated from the University of Michigan with a degree in anthropology in 2005.