Food for thought – “Lack of fairness to an opponent is essentially a sign of weakness.” Emma Goldman
Simplicity in character, in manners, in style, in all things the supreme excellence is simplicity.
Henry Wadsworth Longfellow
Ever wondered if Google could benefit from digital advertising to court users? Taking notice of the technology developed by the San Diego based Impact Engine, Google invited them to meetings to discuss a potential partnership. Rather than a partnership, the end result was patent infringement and a lawsuit filed in July 2019.
According to the lawsuit filed in federal court in July 2019,” Google invited Impact Engine to multiple meetings at its Mountain View headquarters, required Impact Engine to provide prototypes, documentation, and source code, and falsely promised a cooperative partnership to bring Impact Engine’s ideas to Google’s larger platform.”
The complaint went on to say that “through its persistent, unlicensed use of Impact Engine’s inventions, Google extracted billions of dollars in revenue from advertisers, website publishers, and advertising agencies.”
In light of the high cost of litigation, how is David to engage with Goliath in court? One avenue is litigation financing, a third-party funding offering the Davids access to capital without the risk of repayment if the case is lost. This capital allows the plaintiffs to cover the cost of attorney fees, law and motion, discovery, trial, court fees, experts and more. One such investor cites retired New York Supreme Court Justice Eileen Bransten “Litigation funding allows lawsuits to be decided on their merits, and not based on which party has deeper pockets or stronger appetite for protracted litigation.”
Should Goliath know who is financing David’s litigation cost? Google argued it should and asked for the funding agreement and all related documents. The court disagreed and found that the documents are protected by the work product doctrine, and Google cannot get access to “documents and tangible things that are prepared in anticipation of litigation or trial by and for another party or its representative (including the other party’s attorney, consultant, surety, indemnitor, insurer or agent).”
Final words “Impact Engine is not required to produce them.” Judge Cathy Ann Bencivengo
Steven and Gloria’s property had a landscaped yard that included a 30 years old Monterey tree. The roots of the tree extended on Mr. Patel’s yard, their neighbor, causing some cracking on his walkway where it went across the tree roots. Mr. Patel decided to hire a contractor to excavate along the length of his yard and sever the roots of the tree down to a level of approximately three feet. This resulted in a lawsuit by Steven and Gloria, who claimed that the tree became unsafe, a nuisance, unable to support life, and had to be removed at their expense. The court, relying on a 1952 case, decided that Mr. Patel had the absolute right to sever the roots on the tree coming onto his property. Unhappy with the decision, Steven and Gloria appealed.
The court of appeal noted that any removal action must be balanced against the impact on the owners of the tree. It disagreed with Mr. Patel’s position that he had “an unlimited right to do anything he desires on his property regardless of the consequences to others. No person is permitted by law to use his property in such a manner that damage to his neighbor is a foreseeable result.”
The maxim “the right to swing my fist ends where the other man’s nose begins” applies to trees as well. Neighbors intent on applying self-help in cutting down trees encroaching on their property must do so keeping in mind the interests of the tree owners, without causing unreasonable injury. The court concluded that “whatever rights Patel has in the management of his own land, those rights are tempered by his duty to act reasonably.” These were the facts in a 1994 case Booska v. Patel, 24 Cal. App. 4th 1786 decided by the First Appellate District of the California Court of Appeal.
How does one measure the financial loss? The usual measure under California law is the difference between the value of the real property before and after the injury, or, alternatively, the cost of restoring the tree to the condition prior to the injury. That amount is doubled and, under certain circumstances may be even tripled where the conduct was fraudulent, oppressive or malicious.
A party to a lawsuit served with the complaint may have an opportunity to end the case early by filing a motion to dismiss, known in California as a demurrer. The summary below illustrates such a scenario.
Once upon a recent time, there were three colleagues employed by a Silicon Valley company specialized in manufacturing of raw materials used in the semiconductor industry (quartz, silicon, ceramic, etc). The owners of the company intended to sell it and wanted to ensure that the employees would stay with the company and continue working until the sale was completed. As an incentive to key employees, the owners offered stock and stock options that would reward the loyalty of the employees who stayed during the pre-sale period. Continue Reading Opportunity to end a lawsuit before it begins
For most people, the decision to file for bankruptcy is a difficult one, as they struggle to balance financial and ethical realities. Facing insurmountable debt, one must consider the bankruptcy filing against known or perceived disadvantages such as impact on credit rating, difficulty to secure housing or future credit, as well as the bankruptcy moral implications. The bankruptcy code is offering a reconciliation of two opposing goals: offering the chance of a new start to the honest debtor while equitably distributing insufficient assets among the creditors. The Coronavirus pandemic triggered almost 300,000 bankruptcy filings in June 2020 alone, and over 67% of those filings were Chapter 7. Since March 2020, a total of 946,581 bankruptcies have been filed in US according to the American Bankruptcy Institute published statistics.
The debtor may want to consider all non-bankruptcy before making the final decision to file for bankruptcy. Support from an accountant of bookkeeper in situations of positive cash flow on a monthly basis may provide money management support that would allow the debtor to avoid filing for bankruptcy. Credit counseling and debt repaying services or debt negotiation, refinancing, sale of assets or efforts to increase income may also offer alternatives to filing for bankruptcy. One word of caution on income taxes – each time debt is reduced or cancelled by a creditor, that cancellation translates in an equal amount of taxable income. A bankruptcy discharge is an exemption to this general rule and no taxes are due for the discharge of debt in bankruptcy.
The Bankruptcy Code, codified at Title 11 of the United States Code. Different chapters govern the filing available to individuals, organizations, family farmers, municipalities, and other local governments. Continue Reading Chapter 7 – From decision to discharge