Alert to Commercial Landlords: New Access Law Disclosure Requirements Are Now Effective

In recent years, the California legislature has echoed the state’s strong public policy in fostering access to public and commercial properties by persons with disabilities. In 2012, for example, the legislature passed a bill that codified California Civil Code § 1938. Under that bill, every commercial lease agreement executed on or after July 1, 2013 must contain a provision indicating whether the property being leased has undergone inspection by a Certified Access Specialist (CASp), and, if so, whether the property has or has not been determined to meet all applicable construction-related accessibility standards.

AB 2093 Adds Additional Disclosures in Commercial Leases

Late in 2016, the Legislature passed AB 2093, which amends § 1938 by adding additional requirements. Landlords should alter their business practices in light of the following:

•  If the leased premises has not undergone a CASp inspection, or if the property has been altered or modified between the date of an inspection and the date of the lease agreement, the landlord must inform the tenant of its right to request a CASp inspection. Special language for this purpose is now contained in Cal. Civ. § 1938(e).

•  If the landlord has obtained a CASp inspection report that indicates the premises meets applicable construction-related accessibility standards, the landlord must also provide the tenant with a copy of the report within seven days following the execution of the lease.

•  If the landlord has obtained a CASp inspection report that indicates there is a need for modifications or repairs, the landlord must provide the CASp report to the tenant prior to the execution of the lease agreement. If the report is not provided to the tenant at least 48 hours prior to lease execution, the tenant may rescind the lease agreement within 72 hours after lease execution.

Delivery of the CASp report by the landlord to the tenant or prospective tenant may be conditioned upon the latter’s covenant to keep the contents of the report confidential.

AB 2093 Presumes Responsibility for Repairs Remains With Landlord

Under the amended version of Cal. Civ. § 1938, any repairs or modifications necessary to correct violations shown in the CASp report are presumed to be the responsibility of the landlord. The landlord or tenant may specifically agree otherwise, of course.

Landlords Are Not Required to Obtain CASp Reports

Passage of AB 2093 does not change existing law with regard to the need for commercial landlords to secure CASp inspections and reports. Such inspections still are not required.

Prospective Action Needed by Many Commercial Landlords

In order to be in compliance with the new law, California commercial landlords should immediately review current lease agreements and determine if they are in line with the new requirements. Lease agreements should clearly indicate which party is responsible for any repairs or modifications to the premises that are made necessary in the event that the leased property is determined to be in violation of accessibility standards.

Commercial Real Estate Leasing Calls for Experienced Legal Counsel

The law firm of CKB VIENNA LLP has provided both legal and business consultation to commercial landlords for years. We have reviewed and drafted all types of commercial leases and have assisted both landlords and prospective tenants in assessing and managing the risks associated with the letting and renting of commercial real estate. If commercial disagreements arise, our firm is also skilled in all forms of litigation. Our attorneys provide preventive training and offer guidance designed to avoid the consequence and cost of litigation. CKB VIENNA has offices in Rancho Cucamonga, San Bernardino, and Los Angeles. Contact us by telephone – 909.980.1040 – or complete our online form.

Advertising: When Does “Puffing” Become False and Misleading?

We’re all familiar with “puffing,” even if not by name. Puffing (a/k/a “puffery”) consists of advertising that states, in general terms, that a product or service is superior to others. Classic product slogans come to mind:

•  BMW: “the ultimate driving machine,”

•  Maxwell House: “good to the last drop,” or

•  Miller Lite: “Taste great, less filling.”

It isn’t that BMW is promising that you’ll never find a better car, or that Maxwell House is saying that its coffee is the absolute best; U.S. law considers the statements to be sufficiently general in nature as not to be misleading.

Some Product Statements Are Misleading

There is sometimes a fine line, however, between puffing – which is allowed under U.S. law, and making misleading statements in advertising, which is not. A recent decision by the Federal Trade Commission (FTC) concerning a California product is illustrative.

In a mid-December, 2016 decision, the FTC held that promotional advertising by California Naturel, Inc., promoting its “all natural” sunscreen on the company website as containing “only the purest, most luxurious and effective ingredients found in nature” violated Section 5 and 12 of the FTC Act. During the litigation, California Naturel admitted that eight percent of its sunscreen formula was dimethicone, a synthetic ingredient.

Clarifying Statements in Web Site’s Fine Print Often Isn’t Enough

The company contended that it included an accurate product ingredient list and a disclaimer on its web site, but the FTC said it wasn’t enough. It noted that the use of dimethicone was buried within a list of more than 30 ingredients and that nothing identified the ingredient as synthetic. The FTC was particularly critical of the disclaimer, since it was positioned at the bottom of the web site. The FTC contrasted that inconspicuous location with the prevalence of “all natural” advertising elsewhere on the site and on the product packaging. In light of the situation, the FTC issued an order prohibiting California Naturel from advertising its products as “all natural” and making other similar misrepresentations.

“Catch-22” in Advertising

There is somewhat of a Catch-22 when it comes to advertising. Under the “80/20 rule,” 80 percent of all advertising is ignored. So, if your advertising campaign is too bland, no one will pay any attention to it. On the other hand, if you stretch things too far, you could be in trouble with a claim of misrepresentation. How can your advertising land within the 20 percent that is effective and yet still be safe (or relatively so) from FTC and other claims? One smart response: Don’t just engage a marketing team; make sure that team engages with knowledgeable, skilled attorneys at CKB Vienna.

CKB Vienna LLP: A Full-Service Consulting and Law Firm

The law firm of CKB VIENNA LLP provides legal and business consultation to nearly every type of business, from large to small – even to startups and nonprofits. We have helped with advertising and branding issues and have assisted numbers of businesses in trademark research, due diligence research, and in various forms of associated litigation. And while the firm is skilled in all forms of litigation, our attorneys also provide preventive training and offer guidance designed to avoid the consequence and cost of litigation. At CKB VIENNA, we use our collective resources to address every detail of your complex business and legal demands. We have offices in Rancho Cucamonga, San Bernardino, and Los Angeles. Contact us by telephone – 909.980.1040 – or complete our online form.

Waivers in Connection with Insurance Settlement Offers

California Lawyers 

Negotiating with your property insurance insurer concerning a business claim can be time-consuming. And, since “time is money,” it can also be expensive. If you or your California business is negotiating (arguing) with your insurance insurer, you know that at least one fact is true: It can usually afford a delay in resolution of the claim much better than can your business. It has deeper pockets. What you really want is a reasonable settlement offer, and sooner rather than later would be nice.

In California, the Carrier May Demand a “White Waiver”

Within the settlement process, however, there is sometimes a hitch. Before it communicates an offer of settlement to you, your insurance company may demand that you and/or your business sign a special waiver acknowledging that its communication of an offer cannot be later used to establish bad faith against the insurer. Sometimes referred to in California litigation circles as a “White waiver,” the special waiver gets its name from a 1985 decision by the California Supreme Court [see White v. Western Title Ins. Co., 40 Cal. 3d 870, 710 P.2d 309, 221 Cal. Rptr. 509 (1985)], in which the Court said that the contractual relationship between an insured and its insurer does not end when litigation begins. Accordingly, if the insurer makes a “low-ball” offer, the offer itself can be used by the insured as evidence of bad faith on the part of the insurance company.

Should You Sign Such a Waiver?

Faced with a “White waiver,” the answer of whether to sign it is the same as is offered for many legal questions: “It depends.” Generally speaking, if the communication between you and the insurer has been friendly and positive, if the discussions that you have had with the adjuster or insurance executive show a reasonable attitude by the insurer toward the claim, it may be in your best interest to execute such a White waiver. One suggestion here, however: Have the waiver expire in a reasonable, stated, time period. That way, you aren’t waiving the right should the insurer turn out to be negotiating in bad faith. After all, the White decision was never intended to allow an insurance company to withhold performance until the policyholder waived its contract rights.

If the insurer declines to talk unless a White waiver is provided, then signing it may not be a good idea. Refusal to talk is itself a showing of bad faith. Signing the waiver allows the insurer to act in a fashion that is contrary to insurance law.

When the insurer demands a White waiver, it is asking the policyholder to take on faith that the offer that is about to be communicated is a reasonable one. If that were so clear, particularly if the negotiations have turned to acrimony, why would it need the waiver?

What if the Insurer Does Not Require a Waiver?

If no such White waiver is required, and if the insurer’s offer is patently unreasonable, a policyholder should consider using the White decision to hold the insurer accountable in a bad faith claim. One should always expect the insurer to offer a rigorous defense.

Takeaway

The White decision was never intended to place a shield around all communications between an insurance company and its insured. The requirement that it act in good faith continues after a dispute arises over coverage or a claim. If your insurance company shows signs of making a reasonable offer or shows signs of moving up significantly from its prior settlement offers, you may want to consider signing the White waiver. If, on the other hand, there is any doubt that this is going to happen, perhaps you should consider whether:

•  To condition the waiver on the carrier’s making an offer at or above some minimum confidential number, and/or

•  To consider making the waiver apply only for a short period.

Insurance Negotiation Involves Complex Legal Issues

While some businesses choose to negotiate insurance claims without the aid of a skilled, experienced attorney, many find that in doing so they fail to come out ahead. As the saying goes, they “often leave money on the table.” Negotiating takes skill and patience, particularly where there is any question that the insurer may not be dealing in good faith. Are you or your business involved in an insurance claims dispute? Have you been presented with a White waiver? Having experienced, aggressive legal counsel on your side can be crucial to protect your interests. For many years now, CKB VIENNA LLP has represented business, large and small, in all sorts of insurance disputes in California. Our team understands the complexity of the issues and stands ready to represent you aggressively. We have offices in Rancho Cucamonga, San Bernardino, and Los Angeles. Contact us by telephone – 909.980.1040 – or complete our online form.

Four Pointers to Comply With Recent California Supreme Court Rest Break Decision

Just prior to Christmas, the Supreme Court of California, in a split decision [see Augustus v. ABM Security Services, Inc., 2016 Cal. LEXIS 9627 (Dec. 22, 2016)], held that it was a violation of Cal. Lab. Code, § 226.7 and Industrial Welfare Commission (IWC) wage order No. 4-2001, subd. 12(A), to require that security guards keep their pagers and radio phones on and that they remain vigilant and responsive to calls when needs arose during their rest periods. The high court added that under California law, employers relinquish any control over how employees spend their break time; a rest period must be a period of rest.

California’s Rest Break Requirements

While rest breaks aren’t actually addressed in California’s Labor Code, the state’s IWC’s industry-specific Wage Orders require employers to authorize and permit their non-exempt employees to take a net 10-consecutive-minute rest break for each four hour work period or major fraction thereof. Insofar as it is practical, the rest breaks should be taken in the middle of each four-hour work period.

Some HR officials say that rest and meal breaks make scheduling difficult. For example, if a business has just one person working at any given time, it is impossible to keep the business open and allow a complete break in duties for the employee. In the past, some businesses have allowed the employee to take breaks (if business allowed), subject to being called back to the job if necessary. That practice runs afoul of the Augustus decision.

Your Business May Inadvertently Violate the New Augustus Rule

Legal experts caution that the HR practices at many businesses may now violate this new Augustus rule. Here are four pointers to help you comply with the Augustus decision.

Pointer 1: Review all Employee Handbooks

The Augustus majority stresses that the plain meaning of the word “rest,” as well as other language in the Wage Order and Labor Code, caused it to conclude that rest breaks need to be off-duty. Employers may not require an employee to work during any meal or rest period. Make certain your employee handbooks reflect this.

Pointer 2: Relieve Employees of all Duties During Breaks

All too many employers have one policy in print and another in practice. Having the appropriate language within your employee handbooks is useless if your practices are inconsistent with the rules that you have set. During breaks, relieve employees of all duties. Discontinue the use of on-call duties during rest breaks. Recognize that you may have to shift work schedules to accommodate this requirement.

Pointer 3: Allow For Rest Break Premiums if There is No Alternative

If the demands of work are such that employees cannot take the required rest break, employers should have a system in place to compensate the employee the applicable “wage premium” of one hour of pay (at the employee’s regular rate of pay) for any violations.

Pointer 4: Counsel Supervisors Not to Disturb Employees During Breaks

Many employers need to have short training sessions with supervisors to make certain they understand the implications of the Augustus decision. In Augustus, the trial court awarded the class of aggrieved employees $90 million in statutory damages, interest, and penalties. Take the time to train those in charge that the new rules are strict and must be followed.

Augustus is a Significant Decision

Legal experts agree that the Augustus decision is a significant one. Employers who have questions about its ramifications may wish to consult an attorney for clarification. If your firm has historically utilized “on-duty” or “on-call” rest breaks, you should consult an expert to evaluate strategies to avoid potential liability.

For years now, CKB VIENNA LLP has represented all sorts of businesses in employment law matters, including those related to wage and hour issues. Our team understands the complexity of the issues and stands ready to represent you aggressively. We have offices in Rancho Cucamonga, San Bernardino, and Los Angeles. Contact us by telephone – 909.980.1040 – or complete our online form.

What is “Fair Value” in Statutory Buyout of Minority Shareholders?

California is among the states that allows for a kind of shareholder “divorce” when a corporation is hopelessly deadlocked due to shareholder disagreement. As long as the minority can assemble a coalition of at least one-third of the outstanding corporate shares, that minority can sue for an involuntary dissolution of the company.

In turn, however, the holders of 50 percent or more of the voting stock of the company have the statutory right to avoid the dissolution by purchasing for cash the shares owned by those seeking the involuntary dissolution at their “fair value” [see Cal. Corp. Code § 2000]. The statute defines “fair value” as the liquidation value as of the valuation date but taking into account the possibility, if any, of sale of the entire business as a going concern in a liquidation [§ 2000(a)].

A recent California Court of Appeals decision [Goles v. Sawhney, 2016 Cal. App. LEXIS 1010 (Nov. 22, 2016)] provides new guidance in determining the “fair value” of the minority’s interest. The Appeals Court for the Second Appellate District indicated:

•  The determination of “fair value” should include an assessment of the value, if any, of any pending derivative claims. These can be quite common where one block of shareholders blocks the actions of another.

•  § 2000 does not permit a “lack of control discount” in determining “fair value.”

•  Where a trial court appoints three appraisers and then proceeds to determine “fair value,” it should not simply average those appraisals in determining the correct value.

“Fair Value” Versus “Fair Market Value”

Minority shareholders are often disappointed in learning that within the context of an involuntary dissolution, the concept of “fair value” is not the same as “fair market value.” Had the legislature intended the court to determine “fair market value,” it would have said so. And so, in determining the value of the minority’s interest, the Court need not make the evaluation on the basis of a going concern. True, the Court can consider a firm’s going value, but need not do so. It may alternatively consider what a piecemeal sale of the firm’s assets might bring.

Lack of Control Discount

The Court of Appeals clearly indicated the minority’s interest should not be discounted by the fact that the minority, by definition, lacks any effective control of the corporation. This is an incredibly important point. Consider the following hypothetical:

Assume a corporation has two shareholders, one with a 51 percent interest, and another with a 49 percent interest, that it is valued at $1 million. If the value of the minority owner’s interest were determined as the value of his or her proportionate interest in the corporation, the minority owner would receive $490,000. Many valuation experts say, however, that the minority interest should be discounted for lack of control at as much as 33 percent. Were that to be applied, it would result in a final evaluation of the minority’s shares factored in, and the value of the minority owner’s shares could conceivably be reduced by 33 percent, to $323,400. That’s a difference of $166,600.

Averaging the Appraisers’ Valuations

Equally important is the Court’s indication that a trial judge should not merely average the evaluations offered by the three appraisers.

CKB VIENNA LLP: A Full-Service Consulting and Law Firm

The law firm of CKB VIENNA has a long history of representing shareholders of closely held corporations. Our firm has offered valuable advice to those involved in family businesses, particularly when members of the family cannot agree on the future direction of the company. Our attorneys provide counsel on sales of corporate stock and other appreciated assets. We have helped settle business disputes and have designed special client plans to foster estate planning. We don’t stamp out cookie-cutter solutions; we first gain a true understanding of the client’s goals, concerns, and unique issues. Then, we work with the client to achieve success. CKB VIENNA has offices in Rancho Cucamonga, San Bernardino, and Los Angeles. Contact us by telephone – 909.980.1040 – or complete our online form.

California Employers Have “Take-Home Exposure” Duty to Employees’ Families

For some time now, California businesses that expose employees to hazardous chemicals and materials – such as asbestos – have known that they can be liable to those employees for significant workers’ compensation benefits in the event the employee contracts an occupational disease, such as mesothelioma. The employer’s duty to members of the employee’s family, who may suffer from “take-home exposure,” has been less clear.

Employees Can Be “Vectors” Carrying Harmful Materials

In a decision released December 1, 2016, the Supreme Court of California offered some clarity to the issue, holding that employers (as well as premises owners in some instances) have a duty that extends to “members of a worker’s household” to exercise ordinary care to prevent take-home asbestos exposures. The Court indicated that where it is reasonably foreseeable that workers, their clothing or personal effects will act as “vectors carrying asbestos from the premises to household members,” employers have a duty to take reasonable care to prevent this means of transmission.

The high court’s decision struck down two earlier California Courts of Appeal cases that held employers and premises owners owe no duty of care to household members for take-home exposure to asbestos and other toxic chemicals. The Supreme Court said an employee’s return home from work was an unusual occurrence. The Court added that preventing injuries to members of the workers’ household due to asbestos exposure imposed no greater burden on the employer than preventing exposure and injury to the workers themselves.

No Duty, However, Owed Beyond the Employee’s Household

The Court indicated, however, that the duty extends only to members of the worker’s actual household; not to others who claim they also were exposed to the hazardous materials by contact with the employee, or his (or her) clothing or personal effects.

Supreme Court Struck a Balance

While not altogether pleased with the Court’s decision, some employer groups do acknowledge that the Court may have struck an appropriate balance. An employer’s potential tort liability should not be endless and the Court agreed on that point, holding that the employer’s duty to protect persons did not extend, for example, to the worker’s other relatives, friends, acquaintances, service providers, babysitters, neighbors, carpool partners, fellow commuters on public transportation, and laundry workers. Indeed, the Court was attempting to strike a workable balance. It is one thing to allow compensation for reasonably foreseeable injuries of family members; it is an altogether different matter to burden the courts and the defendants with the costs associated with litigation of disproportionately meritless claims.

Premises Owners Have Duty to Contractors and Their Families

Another important part of the decision affects premises owners. Whether the owner hires out work to an independent contractor or has it performed by an employee, the owner has a duty to provide reasonable protection from exposure to hazardous materials, both to the worker and to his or her family. Premises owners may need to examine their practices in this regard.

California Businesses Have Far-Reaching Obligations

California businesses have far-reaching obligations. Some extend even to members of an employee’s household or to the household of contract workers. If it’s been some time since your business reviewed its practices, it might be time to consult with a firm that can provide broad legal and business advice. For years now, CKB VIENNA LLP has represented businesses in all types of legal issues, from litigation to business structure, from best practices to personnel matters. Our team understands the complexity of the issues and stands ready to represent you aggressively. We have offices in Rancho Cucamonga, San Bernardino, and Los Angeles. Contact us by telephone – 909.980.1040 – or complete our online form.

Entrepreneurs Should Recognize Differences in Short and Long-Term Borrowing Needs

Just as there are different tools for different tasks – one cannot use a screwdriver effectively to pound a nail – there are also different financial tools to assist an entrepreneur as he or she works to fulfill a creative business dream. Business experts allow, however, that the principals in all too many business startups fail to account for important differences – and choices – in financing their enterprises. Choosing an inappropriate financial tool can lead to headaches and needless expense. The entrepreneur should be particularly aware of the differences between short and long-term borrowing needs.

Addressing the Entrepreneur’s Short-Term Needs

Working Capital Loans

Most short-term borrowing needs relate to the need for adequate working capital – having sufficient funds on hand to operate the immediate and short-term needs of the business. Properly crafted, a working capital loan can help an enterprise deal with the fact that day-to-day expenses must be covered, yet often there is a lag in the company’s revenue related to those expenses.

A working capital loan usually has a number of common characteristics, including the following:

•  It is a short-term (one year or less) line of credit from a bank or other lender

•  It most usually comes with a variable rate of interest that is tied to some specific, identifiable, short-term interest rate

•  It is usually set up as a “draw” against a maximum amount of principal

•  The borrower generally pays interest only at the specified (variable) rate, often with a provision that the outstanding balance be zero for at least 30 days during the period of the short-term loan

Advantages of Working Capital Loans

Working capital loans have some advantages over other, longer-term borrowing, including:

•  Funds are available quickly

•  The entrepreneur maintains control over the day-to-day operations (this may not be the case, for example, if working capital is obtained through the sale of capital stock)

•  Depending upon the amount of the loan and the credit-worthiness of the entrepreneur, the funds may be made available on an unsecured basis

Addressing the Entrepreneur’s Long-Term Needs

Where the entrepreneur must purchase real estate, machinery, and other durable goods in order to operate the business, a short-term, working capital loan may be insufficient. In those circumstances, there is a need for long-term borrowing. Long-term borrowing usually has a number of common characteristics, including the following:

•  The term of the loan is generally for much longer than a year

•  The loan is often offered at a fixed rate of interest (often somewhat higher than the rate of interest charged for short-term borrowing)

•  The borrower pays both principal and interest in equal installments over time

•  The payout may be based on a long-term amortization schedule

•  Alternatively, the equal monthly payments may extend for some time, with a “balloon” payment due to pay the loan off fully.

•  Most often, these loans are fully secured. In the case of real property, the loan is secured by a mortgage or deed of trust. In the case of equipment and machinery, the lender generally holds a security interest in the property.

Advantages of Working Capital Loans

Long-term borrowing may offer some advantages over working capital loans, including:

•  They may be made in very large amounts

•  As with short-term borrowing, long-term borrowing allows the entrepreneur generally to maintain control of the business; there is no dilution in ownership that would result from the sale of capital stock

•  Access to even large sums can be accomplished in a relatively short period of time

•  Depending upon the circumstances, the long-term borrowing allows for the preservation of working capital that can be used for short-term matters

Should You Review Your Borrowing Needs with an ExperienceD Attorney?

Every entrepreneur’s financial needs are different. Cookie-cutter approaches can be expensive and inefficient. Many entrepreneurs find that it helps to discuss business concerns with an experienced, capable attorney. Banking loan officers can be tied to particular products or terms. Having the counsel of an attorney who can offer dispassionate advice can help you craft a plan for the future. For years now, CKB VIENNA LLP has represented all sorts of businesses in all sorts of business issues. From startups to established businesses, we understand the issues and we stand ready to represent you skillfully. We have offices in Rancho Cucamonga, San Bernardino, and Los Angeles. Contact us by telephone – 909.980.1040 – or complete our online form.

California Employers: Are You Ready for New Employment Laws?

During 2016, the California legislature passed a number of significant laws that affect most Golden State employers. Virtually all the changes take effect January 1, 2017 and it is, therefore, important that California businesses review their employment policies and procedures to make certain that they comply with the new law. While there may be additional laws and regulations that affect your particular service or industry, the following is a brief review of five important employment-related provisions.

Increase in Minimum Wage

While the national debate as to the appropriate level of the minimum continues, California has jumped out ahead with a multi-step increase. SB 3 increases the state’s minimum wage each January 1 from 2017 through 2022 (or 2023 for employers with less than 26 employees). Effective January 1, 2017, the new minimum wage is $10.50 per hour. Employers should also recognize that this increase has other effects, as well. For example, in California, in order to qualify as an “exempt” employee, the worker must earn at least twice the state minimum wage for full-time employment (40 hours each week). The new threshold for exempt employees is now $43,680.

Expansion of California’s Equal Pay Act

Two separate bills passed by the 2016 Legislature – AB 1676 and SB 1063 – work together to expand the California Equal Pay Act so as to: (i) Eliminate prior salary as a bona fide exception to equal pay based on gender, and (ii) prohibit employers from paying employees of a different race or ethnicity different rates for substantially similar work.

Out-of-State Arbitration

Employee groups point to the passage of SB 1241 as one of the most important pieces of worker legislation in years. Generally speaking, the new law provides that employees who work and reside primarily in California may not be required to adjudicate employment-related claims outside the Golden State, nor can they be required to adjudicate claims using the law of another state even if the claim is filed in California. Employers should take care that their post-January 2017 employment agreements comply with the new law. The law specifically applies to arbitration clauses.

Workplace Smoking

ABx2 6 expanded workplace smoking restrictions so as to expand the definition of “smoking” to include “the use of an electronic smoking device that creates an aerosol or vapor, in any manner or in any form, or the use of any oral smoking device for the purpose of circumventing the prohibition of smoking.” E-cigarettes are, therefore, now viewed on the same basis as actual tobacco cigarettes.

All-Gender Rest Rooms

AB 1732 requires all single-user toilet facilities in any business establishment, place of public accommodation, or government agency, be clearly identified and designated as all-gender toilet facilities. The provision actually takes effect March 1, 2017.

Is it Time to Review Your Employment Practices?

Leaders in many California businesses are making New Year resolutions that include a serious review of the firm’s HR practices. There is no time like now to assure yourself and your business that your personnel policies are adequate and up to date. Retaining experienced outside counsel is generally a key to best practices in personnel law. For years now, CKB VIENNA LLP has represented all sorts of businesses in employment law matters. Our team understands the complexity of the issues and stands ready to represent you aggressively. We have offices in Rancho Cucamonga, San Bernardino, and Los Angeles. Contact us by telephone – 909.980.1040 – or complete our online form.

What Prop 64 Means for California Employers

While the recent presidential election has appropriately garnered lots of interest and discussion in the Golden State, passage of Proposition 64 – the voter initiative to legalize the recreational use of marijuana – is also the talk of the town. Apparently a lot has changed since a similar initiative was voted down six years ago. Various pundits have voiced opinions about the probable effects of legalizing weed in the most populous state in the country. Many employers are voicing concern about the viability of their existing drug-free workplace policies. What does Prop 64 really mean for California’s employers?

Widespread Legal Recreational Use May Not Be Immediate

While Californians over 21 years of age or older may now legally smoke marijuana legally, they must do so privately. They may have up to 28.5 grams of marijuana and up to 8 grams of concentrated marijuana (e.g., hash) in their possession, at least according to the Official Voter Information Guide that was published in connection with the proposition.

Appropriately aged adults may also grow up to six marijuana plants at a private home. Under the proposition, they may not:

•  Smoke marijuana while driving a motor vehicle

•  Smoke it in a public place, or in any location in which smoking tobacco is prohibited

•  Possess marijuana on the grounds of any school, day care center, or youth center while children are present

Unless you have your own plants, you may find it difficult to purchase marijuana legally. People without a medical marijuana card may not be able to purchase the product from dispensaries until a separate provision of Prop 64 goes into effect on January 1, 2018. The state has until then to set up a dispensary system.

Prop 64 was not Crafted so as to Affect Employer’s Workplace Drug Policies

Employment law experts note that Proposition 64’s primary component is the decriminalization of recreational marijuana use; it does not ban or restrict a California employer’s ability to regulate marijuana usage within the workplace. In fact, the proposition explicitly allows public and private employers to enact and enforce workplace policies pertaining to marijuana.

Employers are generally allowed to set rules regarding productivity within the workplace. One’s ability to be stoned at home does not, therefore, translate into the right to show up for work in such a condition.

Testing is Not an Exact Science

One problem with marijuana testing: It can observe the presence of marijuana within a person’s system. Since the chemicals associated with marijuana can remain in body cells for days – some argue weeks – after pot use, there is no direct correlation between testing positive for marijuana, on the one hand, and being impaired by it, on the other. As law enforcement officials note, “There is no equivalent of .08 BAC for marijuana.”

Marijuana Remains a Schedule I Drug Under Federal Law

Employers and pot smokers alike should reflect upon the fact that under the federal Controlled Substances Act, marijuana remains a Schedule I drug. That designation is reserved for substances that are prone to abuse and psychological/physical dependence. Because of that federal law, employers can still refuse to hire applicants who test positive for marijuana use.

Employers Should Review Their Drug Policies

In the aftermath of Prop 64’s passage, employers will find it important to review existing drug policies to ensure that existing employees understand employer policies regarding marijuana use. They should also make sure those positions are clear for new hires. Navigating through the post-Prop 64 time frame can be difficult. Many prudent employers are seeking the counsel of experienced attorneys like CKB VIENNA LLP. Our firm has represented all sorts of businesses in employment law matters. Our team understands the complexity of the issues and stands ready to represent you aggressively. We have offices in Rancho Cucamonga, San Bernardino, and Los Angeles. Contact us by telephone at 909.980.1040 or complete our online form.

“Just Walk Away Renee:” Consequences of a Seller’s Breach of a Commercial Real Estate Contract

It happens more often that one might think: The owner of a commercial real estate tract or parcel enters into a contract with a prospective buyer and the owner gets cold feet. Perhaps the owner realizes that the prospective buyer is getting the better side of the bargain. Perhaps the owner decides that it can best utilize the property for its own purposes. Can the owner take the advice of the classic 1967 song by The Left Banke: “Just Walk Away (Renee)?” If the owner does so, what can the shunned purchaser do?

“I’ll Sue, I’ll Sue”

In this litigious world, the quick retort of the jilted purchaser might be, “I’ll sue, I’ll sue.” Yet another legitimate question is, "Sue for what?” The purchaser wanted the tract or parcel of real estate, not a lawsuit.

Aggrieved Party Ordinarily Has Responsibility to Minimize its Damages

Within the American system of laws, an aggrieved party to a contract indeed can generally sue to recover the damages caused by the other party’s breach, but the aggrieved party may not merely sit back and watch the damages accumulate; it must mitigate them. For example, if two parties agree to the purchase and sale of 1,000 bushels of wheat at a specific price and the seller refuses to move forward with the sale, prospective buyer must mitigate its damages by completing the purchase with some other party. If the purchaser has to pay more to secure the 1,000 bushels of wheat, it can recover the difference in a civil action against the original seller.

Wheat is Wheat; Real Estate is Unique

American law, in general – and California law, specifically – recognizes that while wheat is wheat, one parcel of real estate is not like any other; real estate is considered unique. Under the law, no two parcels are considered exactly the same, even if they adjoin. If a shunned buyer is to be made whole, it generally cannot accomplish its original goals by merely buying another tract of real estate. The legal system, therefore, has crafted a special remedy that may, under appropriate circumstances, be used: Specific performance.

Specific Performance

Since each parcel or tract of real estate is unique, the only way an aggrieved purchaser can be made whole is to fulfill the terms of the original contract. Accordingly, California law (and the law of virtually every other state) provides a special remedy: Specific performance. Following a hearing or trial, a court orders the owner to deliver a valid deed to the buyer (upon the payment of the agreed sales price).

Note that specific performance only applies in an action against the seller in a breach of contract action. California courts ordinarily are resistant to the specific performance argument unless money damages are incapable of providing relief. Since sellers generally receive money in the purchase and sale transaction, specific performance is rarely ordered against a defaulting purchaser.

Breach of Real Estate Contract Involves Complex Legal Issues

Any alleged breach of a real estate contract can involve one or more complex legal issues. Having experienced, aggressive legal counsel on your side can be crucial to protect your interests, whether you are an aggrieved buyer or seller. For many years now, CKB VIENNA LLP has represented landowners, leaseholders, property owners, and others in all sorts of disputes related to California real estate. Our team understands the complexity of the issues and stands ready to represent you aggressively. We have offices in Rancho Cucamonga, San Bernardino, and Los Angeles. Contact us by telephone at 909.980.1040 or complete our online form.

How Secure is the “Lock” on Your Business Web Site Door?

California Legislature Amends Data Breach Notification Rules

With all the attention given to state and national political contests and to state-specific initiatives such as California’s Proposition 64, which paves the way for recreational marijuana use within the state, some other important amendments to state law have received less emphasis than perhaps they deserve. One recent change that many California businesses (and some agencies) can ignore only to their detriment relates to Assembly Bill 2828, which amends California’s breach notification laws. Under the new law, approved by the Governor on September 13, 2016, and which becomes effective January 1, 2017, designated businesses must notify affected account holders and others that a breach has occurred, even if the breach only involves encrypted data. How secure is your web site door?

Existing Breach Notification Rules

Under existing law, notification is required when a California resident’s personal information was, or is reasonably believed to have been, acquired by an unauthorized person, and that personal information was unencrypted. In other words, if such an unauthorized person acquires encrypted personal information, notification is not required.

New Rules

Beginning next year, notification will be required for breaches of encrypted personal information of California residents if:

•  Encrypted personal information was, or is reasonably believed to have been, acquired by an unauthorized person;

•  The encryption key (confidential key or process designed to render the data readable) or security credential was, or is reasonably believed to have been, acquired by an unauthorized person; and

•  There is a reasonable belief that the encryption key or security credential could render that personal information readable or useable.

Encryption generally refers to a process that converts data into a form that makes it “unreadable” by an unauthorized person. The California data breach notification law generally defines “encryption key” as the confidential key or process designed to render the data readable.

Some Out of State Businesses Are Also Affected

The amended law is applicable to all persons and businesses that own or license computerized data and conduct business in California, as well as state agencies that own or license computerized data. It is possible, therefore, for a non-California business that conducts business within the state to come under the law.

California Was First State to Require Notification

California was the first state in the country to require notification of security breaches. The original law became effective in 2003. The law has been amended numerous times. The last such amendment (prior to AB 2828) was in October 2015, when the definition of “encrypted” was modified and the definition of “personal information” was expanded.

Number of Breaches has Grown in Recent Years

According to organizations such as the Information Systems Audit and Control Association (ISACA), breaches have become all too common. In 2015, for example, more than 150 million personal records were exposed across the country. In 2016, there have been more than 800 significant data breaches. Ransomware attacks, where a hacker encrypts data until the victim agrees to pay a ransom to obtain the encryption key, have increased by more than one-third. Recent studies indicate that the cost to companies of dealing with data breaches continues to increase, with estimates of more than $150 per lost or stolen record.

Many Businesses Don’t Know They Are Vulnerable

If your California business electronically maintains personal information about personnel or customers, you may be vulnerable to a data breach. Your current business practices may not conform to California law. Failure to follow the data breach law can have expensive consequences for your business. The law firm of CKB VIENNA LLP provides commercial legal advice and counsel to nearly every type of business, from Fortune 500 corporations to startups and nonprofits. Our attorneys provide specialized legal/business consulting services and offer guidance designed to avoid the consequence and cost of litigation including compliance with laws such as those amended by Assembly Bill 2828. CKB VIENNA LLP has a long history of representing clients in all types of business issues. We have offices in Rancho Cucamonga, San Bernardino, and Los Angeles. Contact us by telephone at 909.980.1040 or complete our online form.

Is Trustee in Deed of Trust Bound by Debt Collector Rules?

In an important decision affecting California loan maintenance and foreclosure practices, the Ninth Circuit Court of Appeals, in Ho v. ReconTrust Co., N.A., 2016 U.S. App. LEXIS 18836 (9th Cir., Oct. 19, 2016), recently held that actions taken to facilitate a non-judicial foreclosure, such as sending the notice of default and notice of sale, are not attempts to collect debt as that term is defined by the Fair Debt Collection Practices Act (FDCPA). Nor is the trustee who sends the borrower such notices a “debt collector” under the FDCPA. The Ninth Circuit’s decision, to which one Judge dissented in part, is not in line with several decisions in other circuits, particularly the Fourth and Sixth.

California Lenders Had Been Monitoring the Case

Lenders in the Golden State had been anxiously awaiting a decision from the Ninth Circuit. In the underlying case, the trustee had initiated a non-judicial foreclosure on the plaintiff’s residence under California law. The only actions taken by the trustee were to record and send the legally required notices to the plaintiff/borrower. The plaintiff filed suit, however, alleging that the notice of default and notice of sale violated the FDCPA by misrepresenting the amount she owed on the mortgage loan. The district court granted the trustee’s motion to dismiss, and the plaintiff appealed.

Trustee’s Action Was Not to Recover Money

The majority of the Ninth Circuit panel found, however, that the trustee’s actions had not been an attempt to recover money, but merely had been initiated to retake and resell the property serving as collateral for the underlying loan. The majority pointed out that in California, a non-judicial foreclosure extinguishes the entire debt and does not allow for recovery of any deficiency. The important point: The trustee could recover only the security interest itself. The trustee had no right to recover any money if the security interest did not otherwise cover the balance of the unpaid loan. The majority acknowledged that a trustee’s foreclosure notice might induce a debtor to pay the debt owed the lender, or at least that portion of the debt in order to bring the debt to current status, but “that doesn’t make the guy with the tow truck a debt collector.”

Ninth Circuit Majority Drew Humorous Analogy

The majority drew a humorous analogy to the vehicle owner with a stack of unpaid parking tickets. The majority allowed that one might reasonably fear that one’s car would be impounded due to the accumulation of unpaid parking fines, but that did not turn the "the guy with the tow truck [into] a debt collector.”

Foreclosure Law Still Fraught With Difficulties

Maneuvering through the veritable ocean of state and federal rules and laws related to non-judicial foreclosures is still a daunting task for both the lender and the trustee. Having an experienced, skilled attorney and litigator at the helm can be a true advantage. The law firm of CKB VIENNA LLP has provided both legal and business consultation to mortgage lenders, trustees, and others in commercial lending for years. We have assisted lenders in managing the risks associated with the FDCPA and other complex financial rules. Our firm is skilled in all forms of litigation. Our attorneys provide preventive training and offer guidance designed to avoid the consequence and cost of litigation. CKB VIENNA has offices in Rancho Cucamonga, San Bernardino, and Los Angeles. Contact us by telephone at 909.980.1040 or complete our online form.

Fixed or Floating: Which Type of Rate is Best for Commercial Real Estate?

When it comes to arranging financing for the acquisition of commercial real estate, many borrowers are immediately struck by how different the process is when compared to residential real estate lending. That difference is due, at least in part, to the fact that commercial real estate loans, unlike the vast majority of residential mortgages, are not ordinarily backed by any government entity, such as Fannie Mae or Freddie Mac.

Commercial real estate rates tend, therefore, to be somewhat higher and many banks and commercial lenders want to scrutinize not only the details of the real estate purchase, but the underlying business itself. One issue that is surely to come up: Fixed or floating rates? Which is best for commercial real estate? As with many situations, the devil is in the details.

Fixed-Rate Commercial Mortgages

Many commercial enterprises are drawn to fixed-rate mortgages because the risk is easier to calculate and the number of variables is somewhat less. The primary advantage to fixed-rate financing, of course, is the lack of volatility. It is easier to budget the cash outflow. Depending upon the situation, the fixed-rate mortgage might even be offered on a non-recourse basis – there is no personal liability involved. Fixed-rate financing has some disadvantages, however, including:

•  Since the lender takes the risk of rising interest rates, and not the borrower, the rate tends to be somewhat higher than in floating-rate situations.

•  Many fixed-rate commercial mortgages have pre-payment penalty clauses; the lender, after all, is looking to lock in a rate of return for a fixed number of years.

•  To counter the pre-payment penalty problem, you may be able to negotiate a “new buyer assumption” provision. Usually, however, the lender will want to approve of any person or firm that purchases the commercial property from you.

Floating-Rate Commercial Mortgages

In years past, floating-rate commercial mortgages were looked down upon. The notion was “why would a borrower take the risk of rising rates?” The truth of the matter is that someone must take that risk, either the lender or the borrower (or sometimes both). If the borrower is willing to assume some, or all, of that risk, the dividend can be some important savings in interest costs, particularly in the first few years of the mortgage. Floating-rate mortgages are particularly attractive for borrowers who do not intend to hold the property for a long period of time. For a sophisticated borrower, particularly one who has a sense of where long-term rates are moving, the floating-rate commercial mortgage can be quite attractive.

The Takeaway

The takeaway here is that floating-rate commercial mortgages are not the “dumb moves” some investors have historically thought and, conversely, fixed-rate mortgages can have disadvantages, depending upon the borrower’s circumstances. Commercial real estate borrowers should make careful assessments of interest rate risk, the stability of the local real estate market, and other factors that are likely to be unique to the borrower’s needs. If a euphemism ever truly fit a lending situation, it does here: When it comes to commercial borrowing related to real estate, one size does not fit everyone.

Commercial Real Estate Lending Calls for Experienced Legal Counsel

The law firm of CKB VENNA has provided both legal and business consultation to commercial mortgage lenders and borrowers for years. We have drafted core loan documentation and have assisted both lenders and borrowers in assessing and managing the risks associated with the commercial real estate. Our firm is also skilled in all forms of litigation. Our attorneys provide preventive training and offer guidance designed to avoid the consequence and cost of litigation. CKB VENNA has offices in Rancho Cucamonga, San Bernardino, and Los Angeles. Contact us by telephone at 909.980.1040 or complete our online form.

Don’t Forget Tax Benefits Related to Qualified Small Business Stock

Many Californians are familiar with the tax-favored treatment allowed under some conditions with regard to the sale of their principal residence. In many cases, married sellers can exclude up to $500,000 of the gain on the sale. But are you familiar with another important tax benefit called the “qualified small business stock” (QSBS) exclusion? If you are involved in a small business, you should be.

IRC § 1202

Internal Revenue Code § 1202 allows the seller of a “qualified small business” to exclude up to 100 percent of the gain attributable to the sale or exchange of qualified small business stock from taxation. In order for the “stock” to qualify for the favored tax treatment, it must have the following characteristics:

•  The stock must have been originally issued by a “qualified small business.” Generally speaking, such a business must be a “C Corporation” that did not have $50 million or more in assets at the time when it was formed.

•  The taxpayer must have acquired the stock at its original issue in exchange for money, property, or as compensation for services provided to the corporation.

•  During the time when the taxpayer owned the stock, at least 80 percent of the corporation’s assets must have been actively used to conduct one or more qualified businesses. Generally, any active trade or business qualifies – except certain excluded businesses such as health, law, and engineering financial businesses including banking, insurance and financing, and certain other businesses (farming, mining, and hotel or restaurant operation).

•  The corporation must be an “eligible corporation” within the meaning of the statute.

•  The corporation must not have redeemed more than a de minimus amount of stock from the taxpayer (as well as certain related parties) during the four-year period beginning two years prior to the issuance of stock to the taxpayer.

Exclusion Percentage Depends on Date When Stock Was Acquired

Those sellers who have held QSBS for more than five years may be eligible to exclude the gain on a sliding scale, depending upon acquisition dates. For example:

•  QSBS acquired after September 27, 2010 is eligible for the 100 percent exclusion

•  QSBS acquired before February 18, 2009 is eligible for a 50 percent exclusion

•  QSBS acquired after February 18, 2009, but before September 27, 2010, is eligible for a 75 percent exclusion

Under any circumstances, however, the excluded gain is limited to the greater of $10 million or ten (10) times the taxpayer’s adjusted basis in the QSBS.

Favorable Tax Treatment Would Have Expired

The favorable tax treatment allowed under § 1202 would have expired this year, but Congress extended it in December 2015 by passage of The Protecting Americans From Tax Hikes Act. Anyone contemplating the sale of an interest in a small business should consult with a business law expert to determine if the transaction can be crafted so as to take advantage of the exclusion.

CKB VIENNA LLP: A Full-Service Consulting and Law Firm

The law firm of CKB VENNA has a long history of representing high-net-worth individuals, substantial closely held and family businesses – many of which qualify for QSBS favorable tax treatment. We help others with all sorts of business and wealth management issues. Our attorneys provide counsel on sales of corporate stock and other appreciated assets. We have designed special client plans to foster estate, gift, and generation-skipping transfer tax planning and sophisticated charitable giving. We have counseled others regarding complex tax controversies. We don’t stamp out cookie-cutter solutions; we first gain a true understanding of the client’s goals, concerns, and unique issues. Then we work with the client to achieve success. CKB VENNA has offices in Rancho Cucamonga, San Bernardino, and Los Angeles. Contact us by telephone at 909.980.1040 or complete our online form.

Does an Employee Commuting via Uber or Lyft Qualify for Tax-Free Treatment?

As many employers recognize, under Internal Revenue Code § 132 and regulations, an employer may provide certain transportation benefits to employees on a tax-free basis, if the transportation expenses are incurred via qualifying commuter highway vehicles, vanpools, transit passes, parking, and bicycles. As ride-sharing services, such as Uber and Lyft, become more and more popular, the issue arises as to whether an Uber or Lyft commute can be provided on the same tax-free basis. As is the case with many legal questions, the answer depends upon the specific circumstances.

Do “Vanpool” Rules Apply to Uber and Lyft?

Of the several qualifying tax-free commuter expenses, only the “vanpool” exemption would appear to apply to Uber and Lyft. Generally speaking, up to $255 per month (for 2016) in vanpool expenses may be excluded from the employee’s income. Somewhat different rules apply, however, depending upon whether the van pool is:

• Employer-operated,

• Employee-operated, or

• “Private or public transit operated”

Employer-Operated or Employee-Operated Vanpools

When it comes to either employer-operated or employee-operated vanpools, the vehicle must seat at least six adults (not counting the driver) and at least 80 percent of the vehicle’s mileage must reasonably be expected to be (1) used to transport employees between their residences and their jobs and (2) used on trips during which the number of employees transported for commuting is at least 50 percent of the vehicle’s adult seating capacity (again, not counting the driver). Neither the employer-operated nor the employee-operated vanpools would appear to work in an Uber/Lyft scenario.

Private or Public Transit Operated Vanpool

Private or public transit operated vanpool vehicles must seat at least six adults (not counting the driver), but it need not meet the “80/50 rule” mentioned above. IRS regulations also require the vanpool to be owned and operated either by public transit authorities or by any person in the business of transporting persons for compensation or hire.

UberPool Service and LyftLine Appear to Qualify, at Least Under Some Circumstances

Uber’s “UberPool” service and Lyft’s “LyftLine” would appear to qualify as private transit operated vanpools, provided that the vehicle had the appropriate number of seats. For example, in some cities, such as Boston, UberPool serves a maximum of four riders. Under that arrangement, it would not appear to qualify for tax-free treatment. In other cities, however, UberPool and Lyft offer six-passenger vehicles. Under that situation, the ride sharing could qualify.

Other Issues

Generally, the IRS requires an employer to provide vouchers, or the functional equivalent, to the employee who then uses the voucher to pay for the ride service. It remains to be seen whether that arrangement can be set up under Uber or Lyft. Employers must also determine the fair reasonable value of each commuter’s ride. Here, some tax experts say the IRS regulations haven’t quite caught up to the ride-sharing model.

Employee Benefit Policies Are Part of an Overall HR System

When considering tax-free commuter plans and any other form of employee benefit, careful attention needs to be given to a host of important details. Failure to follow the Internal Revenue Code and/or the applicable regulations can have tax consequences for both the employer and the employee. Is it time that your business reviewed its employee benefit policies and procedures? CKB VIENNA provides employment/labor counseling and litigation services to nearly every type of business, from Fortune 500 corporations to startups and nonprofits. Our attorneys provide specialized legal/business consulting services and offer guidance designed to avoid the consequence and cost of litigation, including compliance with laws in the areas of hiring, promotion, discipline, termination, compensation, harassment, substance abuse, wage and hour, affirmative action, and independent contractor arrangements. CKB VENNA has a long history of representing clients in all types of business issues. We have offices in Rancho Cucamonga, San Bernardino, and Los Angeles. Contact us by telephone at 909.980.1040 or complete our online form.

Will California Follow Utah in Implementing a White-Collar Crime Registry?

Most of us are familiar with sex offender registry websites. Every state, including California, has one. Some states are beginning to track the whereabouts of other types of offenders. For example, five states, including California, require registration for convictions of arson. In Indiana, a public website allows online visitors to use Google Maps to find the location of homes that have been used as meth labs. Last year, Utah became the first state to implement an online registry for white-collar crime offenders. Anecdotal information indicates that various California legislators are contemplating such a registry for white-collar criminals within the Golden State.

Utah’s Registry Includes Photos and Other Information

The Utah list includes a recent photograph of any criminal convicted of second-degree felonies involving fraud during the last 10 years within the state. While the information is already fully available to the public, supporters of the registry point to the user-friendly aspects of the state database and argue that it can be an important tool in protecting vulnerable citizens against fraud, particularly the type known as “affinity fraud.”

Affinity Fraud: “I’m Just Like You”

Affinity fraud is generally based on the notion that “I’m just like you, so I’m trustworthy.” The perpetrator pretends that he or she has an affinity with a strong group within the states and seeks to leverage that affinity in a fraudulent manner. The most famous affinity fraud case in recent times was that involving Bernie Madoff, who cheated his clients – many of whom were friends or colleagues – out of nearly $50 billion.

In Utah, legislators who supported the registry bill argued that due to its close-knit social and religious ties, the state was particularly vulnerable to the “Madoff-like” type of fraud. In 2014, an insurance agent who belonged to the Mormon Church allegedly cheated some 700 people out of $72 million. At that time, the FBI named Salt Lake City as one of the top five “Ponzi hotspots” in the United States.

California Also Has More than its Share of Ponzi Schemes

The FBI adds that California is another of those fraud “hotspots.” For example, in February 2016, a federal judge sentenced the CEO of a California real estate investment firm to 14 years in prison for running a Ponzi scheme that may have lost as much as $169 million. In June 2016, the U.S. Securities and Exchange Commission charged two California men with operating a Ponzi scheme. The men allegedly specialized in serving middle-class investors and, for a while, provided huge returns by investing in hot "initial public offering (IPO) stocks, such as Uber and Alibaba. According to the SEC, the two never actually invested any money in the IPO stocks, but used money from new investors to provide returns to earlier investors.

California is Getting Serious About White-Collar Crime

California lawmakers are getting serious about white-collar crime and there is always a tendency to cast such a wide net that those who are innocent get caught up in the snare as well. CKB VIENNA offers a full range of advocacy services, including the representation of those charged with white-collar offenses. Legal experts agree that white-collar defense requires not only a thorough knowledge of the California criminal laws, but it requires an understanding of the complex laws and regulations regarding commercial operations. CKB VENNA has a long history of representing clients in all types of business issues and disputes. We have offices in Rancho Cucamonga, San Bernardino, and Los Angeles. Contact us by telephone at 909.980.1040 or complete our online form.

Four Questions To Ask Yourself When Funding Your Startup

You have the perfect business idea. Maybe you’ve designed the best widget ever or you’ve developed a new process that could revolutionize an existing product or service. You’ve received encouragement from friends and colleagues. You’ve carefully crafted a clear and concise business plan, but you’ve determined you may need funding. What do you do?

Issues related to startup funding can be numerous and complex. If only there was a simple, straightforward solution that would let you get on with it. Unfortunately, there really are no true shortcuts. There are a number of initial questions, however, that you should ask yourself. Their answers should get you moving toward the best solution to your funding needs. Here are four that every entrepreneur should address.

How Will I Utilize the Startup Funding?

Most startup experts advise entrepreneurs to make a list of financial needs, the likely amounts needed, and the priority of the need in achieving overall success. Then, working from the bottom of the list, is there anything that you can actually do without? This exercise will give you the best idea of your real needs.

How Soon Will You Be Profitable?

If you project profitability in relatively short order, that may raise the question of whether you need startup funding at all. Understanding the profitability timeframe may at least help you determine the nature of the investment that you should go after. For example, if the profit line is relatively short, a loan may be best, since it won’t dilute your interest in the business.

How Much Control Are You Willing to Give Up?

This is one of the most difficult issues most entrepreneurs face. The more funding you get, the more control you may have to give up. Don’t expect a funding source to share your passion and optimism. They are likely to have that same level of passion about their cash, so expect some candid negotiations in this regard.

Can You “Play in Groups?”

Just as outside funding brings with it a loss of at least some level of control, it also brings the need to work well with others. Can you communicate? Are you stubborn or volatile? Can you take constructive criticism? You may have been the first with the “aha moment,” but funding brings either partners/shareholders or creditors. If you can’t cooperate with others, you may find that your funding issues come at too great a cost.

You May Decide Startup Funding is Appropriate or Perhaps You’ll Resort to Bootstrapping

Armed with the answers to these initial questions and, assuredly, many others, you may have a clear path for your startup funding or you may decide that bootstrapping is the preferred alternative. Either way, you are likely to need the experience and dispassionate counsel that is available through a seasoned group of attorneys.

The law firm of CKB VIENNA LLP provides legal and business consultation to nearly every type of business, from large to small – even startups. We have helped entrepreneurs identify and face funding issues and we have provided broad counsel in other related areas. And while the firm is skilled in all forms of litigation, our attorneys also provide preventive training and offer guidance designed to avoid the consequence and cost of litigation. CKB VIENNA has a long history of representing clients in all types of business matters. We have offices in Rancho Cucamonga, San Bernardino, and Los Angeles. Contact us by telephone at 909.980.1040 or complete our online form.

Recent CashCall “True Lender” Decision Has Broad Implications for Lenders

In a decision that may have far-reaching ramifications for other lenders, a judge in the U.S. District Court for the Central District of California recently held that high interest consumer loans originated by a tribal lending entity formed by the Cheyenne River Sioux Tribe were actually made by California-based, CashCall, Inc., and as such were subject to regulation by the Consumer Financial Protection Bureau (CFPB). Since CashCall – and not the Indian tribe – was the “true lender,” the consumer lending laws of the borrowers’ home states, which prohibited the high-interest loans, applied, indicated the court. As a result, CashCall’s servicing and collection efforts were deemed to have violated the Dodd-Frank Act ban on unfair, deceptive, or abusive acts or practices (see CFPB v. CashCall, Inc., Aug. 31, 2016, Walter, J.).

Totality of the Circumstances Test Used By Court

Judge Walter reached his decision using the so-called “totality of the circumstances” test to determine which party actually had the “predominant economic interest” in the transaction. Legal experts note that other courts have utilized different standards to who is the “true lender.” For example, some courts merely look to what entity is designated as lender in the loan agreement papers. Others have centered their focus on an examination of which party engages in the three non-ministerial acts:

•  The determination to extend credit

•  The extension of credit itself

•  The disbursement of funds resulting from the extension of credit

CashCall Controlled the Entire Lending Scenario

Judge Walter found that it was CashCall and not the Tribe that controlled the entire business process. For example, CashCall “purchased” the loans prior to the first payment due date. It covered most of the Tribe’s operating costs and agreed to indemnify the Tribe against any civil, criminal, or administrative claims. While consumers used the Tribe’s website and telephone number to initiate the loan process, CashCall hosted servers on which the online applications were made. CashCall serviced the loans and, if a loan went into default, the loan was transferred to a CashCall entity for collection purposes.

Decision May Affect Marketplace (Peer to Peer) Lending

The CashCall decision offers at least indirect support for the CFPB’s recent proposal to subject non-bank marketplace lenders to its supervision. While the Dodd-Frank Act directed the CFPB to supervise various categories of lenders (e.g., mortgage lenders and services, private education lenders, and payday lenders), it also allows expansion of CFPB’s supervision in other consumer markets. Reports indicate the Bureau has its sights on marketplace lenders, such as the Lending Club.

There is also some question, in light of Judge Walter’s ruling, about the continuing ability of a community bank to “export” the interest rate of its home state without regard to the varied usury laws of the 50 states.

Lending Practices Continue to Face Scrutiny at State and Federal Levels

Today, lenders face a host of disparate legal and regulatory rules. The legal landscape can appear like a minefield. Maneuvering through that minefield can best be accomplished by retaining experienced, skilled attorneys and litigators. The law firm of CKB VIENNA LLP has provided legal and business consultation to commercial and consumer lenders, mortgage originators, mortgage servicing companies, and other lending entities for years. We have extensive experience with FCRA and Truth in Lending rules. We are conversant in the sort of “techno speak” found in Dodd Frank. Our firm is also skilled in all forms of litigation, should that need arise. CKB VIENNA has offices in Rancho Cucamonga, San Bernardino, and Los Angeles. Contact us by telephone at 909.980.1040 or complete our online form.

Be Careful With 401(k) Rollovers as You Reach Age 70

Salting away funds in a 401(k) plan is not only prudent; it’s psychologically satisfying. But the IRS doesn’t intend for you to keep funding your plan and deferring the taxes forever; there are special rules that mandate that you begin taking required minimum distributions (RMDs) in the year that you reach 70 ½. Calculating the RMDs can lead to hair pulling; you may even need to hire a professional. Bear in mind that as you reach the age of 70, if you intend to rollover your 401(k) into an IRA account, special rules apply and caution is advised. Here are some points you should keep in mind.

First, IRS is Serious About Required Minimum Distributions

Regardless of a taxpayer’s financial need, the IRS generally requires owners of traditional IRAs, 401(k) plans, simplified employee pensions, and other retirement accounts to begin taking RMDs – and paying the resulting tax – by April 1 of the year after they reach age 70 ½. Failure to do so results in a 50 percent excise tax on the RMD amount not distributed.

Second, In the Year You Turn 70 ½, Take Your RMD from 401(k) Before the Rollover

If you still have the 401(k) account on the first day of the year in which IRS rules require you to take a distribution, you must take that distribution from the 401(k) account before you roll the account over to your IRA account. If you rollover and then take a distribution, it won’t count as an RMD and you’ll be penalized. In the years after the rollover, you will only have to make the RMD withdrawal from the IRA.

Third, Multiple Plans Require Aggregation of RMDs

If you are a participant in more than one ERISA qualified plans, your RMD must be determined for each plan separately, and each RMD amount must be distributed from that particular plan. RMD amounts for qualified plans cannot be distributed from an IRA. If you have multiple IRA accounts (or multiple 403(b) accounts), you may aggregate the RMD for all similar plans and then take that amount from one account in each type of plan.

Fourth, Death or Divorce Do Not Affect Current Year’s RMD Calculations

If the taxpayer is married on January 1, he or she is treated as married the entire year for purposes of RMD. Therefore, if you divorce or if your spouse dies later in the year, the RMD must be calculated without regard to the change in marital status.

Takeaway: Be Careful As You Near 70 Years of Age

The points noted above are not an exhaustive listing of all the factors that come into play with RMD calculations, roll-overs, and the like. Your situation may be unique. It’s always good to check with a professional advisor. As they say, “Better safe than sorry.”

Wealth Management and Asset Preservation

The law firm of CKB VIENNA LLP has a long history of representing high-net-worth individuals, substantial closely held and family businesses, and others with all sorts of wealth management issues. Our attorneys provide counsel on estate, gift and generation-skipping transfer tax planning, sophisticated charitable giving, tax controversies, using life insurance as a planning tool, business succession planning, asset protection, charitable organizations and private foundations. We don’t stamp out cookie-cutter solutions; we first gain a true understanding of the client’s goals, concerns, and unique issues. Then we work with the client to achieve success. CKB VIENNA has offices in Rancho Cucamonga, San Bernardino, and Los Angeles. Contact us by telephone at 909.980.1040 or complete our online form.

Is California’s “Ban the Box” Law Effective in Promoting Minority Hiring?

On July 14, 2014, California joined at least a dozen other states in banning most public and private employers from inquiring about a job applicant’s criminal record on the initial job application. While, in most cases, employers are allowed to inquire about convictions later in the hiring process, they are not allowed to treat criminal convictions as an automatic “disqualifier.” The laws became known as “ban the box” [BTB] laws, since many job application forms historically had required the applicant to check off if he or she had any convictions.

Critics Say Lack of Information Leads to “Guessing” on Part of Prospective Employers

The goal of the laws is to improve employment outcomes for those with criminal records, with a secondary goal of reducing racial disparities in employment. Critics of the laws argue that without prior conviction information at their disposal, all too many prospective employers try to “guess” which applicants may have a criminal record, and avoid interviewing them. Some critics contend the result of this “guessing game” is that many young, low-skilled, black, and Hispanic men are systematically excluded from the hiring process.

New Study: Ban the Box May Have Unintended Negative Consequences

A new study published by the National Bureau of Economic Research (NBER), an American private nonprofit research organization, says the critics may be right: BTB legislation may actually be hurting the segment of society that it is designed to help.

In the study, researchers sent some 15,000 fake online job applications to employers in New Jersey and New York City both before and after those jurisdictions enacted their versions of BTB laws. Each employer was sent two applications containing identical qualifications. The only difference: One was from a man whose name is most commonly found within the white community, while the other included a name most often found among blacks. According to the study, prior to the BTB rules, a “white” applicant was 7 percent more likely to receive a callback than a “black” applicant. After passage of the BTB rules, the disparity jumped to 45 percent.

The researchers further found that BTB policies didn’t just reduce callbacks; they decreased the probability of being employed by 3.4 percentage points for young, low-skilled black men, and by 2.3 percentage points for young, low-skilled Hispanic men. The researchers conclude that the findings support the hypothesis that when an applicant’s criminal history is not available, employers statistically discriminate against demographic groups that are likely to have a criminal record.

Human Resource Departments Should Exercise Care in Processing Applications

HR officials should obey not only the letter, but also the spirit of the BTB legislation. Employers that systematically refuse to interview applicants who “appear” likely to be from one demographic or another can lead to severe legal issues and charges of discrimination. Discrimination is a serious matter – one that costs the employer, both financially and in prestige. Prudent employers monitor hiring practices and assure themselves (and others) that discriminatory practices are not being followed.

Many businesses determine that having experienced, outside counsel is a key to best practices in personnel law. For years now, CKB VIENNA LLP has represented all sorts of businesses in employment law matters. Our team understands the complexity of the issues and stands ready to represent you aggressively. We have offices in Rancho Cucamonga, San Bernardino, and Los Angeles. Contact us by telephone at 909.980.1040 or complete our online form.