Attorney Cody Guarnieri Appointed as Connecticut Bar Association Presidential Fellow

The law firm of Brown, Paindiris & Scott would like to congratulate Attorney Cody N. Guarnieri on his appointment as a Connecticut Bar Association Presidential Fellow. The Presidential Fellowship is a prestigious distinction and is related to a CBA program in its inaugural year. Attorney Guarnieri's Presidential Fellowship is with the Criminal Justice Section of the CBA. As a Presidential Fellow, Attorney Guarnieri is an ex-officio member of the executive committee of the Criminal Justice Section and is expected to be an ambassador to younger and transitioning lawyers in engaging with CBA and Criminal Justice Section programming and professional opportunities. His two year term began on September 18, 2015.

Attorney Guarnieri graduated with honors from the University of Connecticut School of Law in 2012. His legal practice focuses primarily on representing adults and children accused of crimes, defending professional licenses as well as in personal injury and workplace injury matters. He is also the current President of the Hartford Rotary Club. He lives in South Windsor with his wife and son.

Class Action Lawsuit Filed for Volkwagen “CleanDiesel” Emissions Fraud

Attorneys Bruce E. Newman and Cody N. Guarnieri commence class action lawsuit against Volkswagen Group of America and its Parent Company Located in Germany.

Cody Guarnieri and Bruce Newman have filed a class action lawsuit on behalf of Drew Mizak of Plainfield, Connecticut, and others similarly situated nationwide, against Volkswagen Group of America, Inc., and Volkswagen Aktiengesellschaft, located in Wolfsburg, Germany. This lawsuit follows the discovery and release of those companies having defrauding consumers worldwide. It is alleged that Volkswagen intentionally misled consumers regarding their "CleanDeisel" automobiles models sold in the United States from 2009 to 2015, including the VW Jetta, VW Beetle, VW Golf, VW Passat and Audi A3, all of which included 2.0L Turbocharged Diesel Injection engines ("TDI"). The German carmaker is claimed to have marketed and sold these models as both highly efficient and emissions reducing. In reality, Attorneys Newman and Guarnieri allege, Volkswagen installed a "defeat device" in the form of sophisticated software was installed in these models which only suppressed emissions to comply with the Clean Air Act when subjected to federal testing. Under non-test conditions, these automobiles are alleged to have emitted up to 40 times the allowable emissions under federal standards.

This is believed to be the first and only claim brought in the Federal District of Connecticut to date, and one of few in New England, as well as which incorporate claims against the German parent company of Volkswagen. Up to 500,000 cars are believed to be effected in the United States, as well as more than another 10.5 million worldwide.

If you are an owner or lessee of an affected car or have questions, call Attorney Guarnieri at (860) 522-3343 or Attorney Newman at (860) 583-5200.

WNPR: http://wnpr.org/post/plainfield-connecticut-teacher-sues-volkswagen-over-clean-diesel-cars

Hartford Courant: http://www.courant.com/business/hc-volkswagen-lawsuit-brown-pandiris-20151003-story.html

National Law Journal:http://www.nationallawjournal.com/id=1202738747122/VW-Hit-with-Onslaught-of-Class-Actions-Across-32-States?slreturn=20150905113157

International Business Times: http://www.ibtimes.com/volkswagen-emissions-scandal-us-vw-owner-sues-company-joining-long-list-suits-filed-2124517

Norwich Bulletin:http://www.norwichbulletin.com/article/20151002/NEWS/151009878

JD Journal: http://www.jdjournal.com/2015/10/05/nearly-200-class-action-suits-filed-against-volkswagen/

"Secret" Probate Lien Went into Effect Oct. 1

Connecticut Public Act 15-05 Introduces a New Unrecorded Probate Fee Lien Upon the Death of the Owner of Connecticut Real Estate

Upon the death of an owner of Connecticut real property, Connecticut General Statute §12-398(d) creates an inchoate estate tax lien in favor of the state. Often called a “secret” lien, it is not recorded on the title but a release must be obtained and recorded before the new owner can convey clear title to a buyer.

Now, with the passage of Section 454 of Public Act 15-05, there is a new inchoate or “secret” lien to be aware of when a property is being sold by an estate or beneficiary. This section creates a lien in favor of the State to secure the probate fees payable by the estate. Similar to the inchoate estate tax lien, any person buying real property from a title successor is charged with notice of its existence even though it is not recorded.

This lien will impact all real estate practitioners who represent a buyer in a real estate transaction from an estate or beneficiary of any estate. In addition to requiring the release of the Connecticut estate tax lien, counsel will now also need to require from seller a release of the lien for probate fees from the probate court. This process will represent another step that may require some lead time and it is best to be mindful of the logistics involved in this new process. 

If you have any questions about this or any real estate matter, contact the real estate attorneys at Brown, Paindiris & Scott at 860-659-0700. 

David Rintoul was interviewed today on the Ray Donovan Show   on WTIC regarding President Obama’s recent announcement that the regulations of the Fair Labor Standards Act will be changed so more employees will be eligible for overtime.  Many employees who make less than $50,400 annually will now be eligible for overtime.   Previously, the limit was set at $23,600, less than the federal poverty level for a family of four. Employees who made more than this only qualified for overtime by satisfying a complex and arcane test dependent on the duties they performed.  The change will give both employees and employer more certainly about who is entitled to overtime.  David discussed the effect on workers and employers in Connecticut President Obama’s overtime changes.   If you have any questions about overtime pay in Connecticut, send David an email at drintoul@bpslawyers.com, or go to his profile at here

Home Sweet Home: The Perils of Co-Ownership for Unmarried Couples

You found the perfect home, well, not perfect but it has potential.  You and your partner can scrape up enough for the deposit and your combined income will allow you to manage the hefty mortgage payments.  So why are you anxious?  It’s not buyer’s remorse, it’s your common sense reminding you of one important fact: you and your partner are not married.  Perhaps you are both previously divorced.  Maybe you have philosophical objections to marriage.  Whatever the reason, your marital status is a relevant factor in this transaction and you should consider the risks carefully.

What happens if you part ways or if one of you dies?  The law often does not provide clarity for such situations.  But if you both sign a mortgage note you will both be liable for the full amount of the loan until it is paid in full, often thirty years from now.

Let’s imagine the worst case scenario.  Fast forward five years and your situation could be vastly different.  Your relationship has soured and you want out of this situation.  Your partner is uncooperative about selling the property, refuses to move out and cannot afford to pay the monthly expenses associated with the property on their own.  All conversations with your partner have become emotionally charged and heated.  What is your liability?  What is your recourse?  

Your legal exposure can be significant, especially considering that in most areas buying a home involves borrowing several hundred thousand dollars.  If the mortgage goes into default the lender will eventually foreclose, seriously jeopardizing your credit and leaving you subject to a possible deficiency judgment for the difference between the value of the property and the debt when the foreclosure occurs.  Any investment you made in the property is at risk of being lost, as foreclosure actions can quickly eat up some or all of your equity.  You may also have personal responsibility for other expenses associated with the property such as association fees, taxes and utilities that are in your name. 

What are your rights?  Can you force your partner to move out?  Can you force them to contribute monthly to the carrying costs?  Only with a court order.  And what’s the legal authority that allows courts to enter such orders?  That is where it gets tricky.  Co-habitation cases, as they are often called, are a newly evolving area of the law.  There is not a lot of legal precedent for these types of cases, therefore, not a lot of certainty exists in terms of the possible outcome.  There may also be unique tax consequences for unmarried couples.  One thing you will know from the outset is that it will be expensive, with the legal costs of each side capable of escalating quickly into tens of thousands of dollars. 

Co-habitation cases are not cookie-cutter court actions similar to no-fault divorce actions where judges routinely divide up a couples’ property according to well-established legal principals.  Co-habitation cases are civil actions, each with their own unique factual claims, such as who put in how much, who paid the mortgage, who paid for improvements, what was the “deal” at the outset.  And while the law will continue to evolve in this area, it may take decades to become somewhat uniform and the specific circumstances of each case will still be subject to dispute and interpretation.  So how do you protect yourself now, before you commit?  You invest in a pound of prevention.  Consult with an attorney who has experience in drafting co-tenancy agreements.  Have a contract drawn up which recites in detail how the deposit is being paid, how closing costs are being paid and how the monthly expenses going forward are to be paid.  Address how improvements you make to the property will be managed.  Consider how you will hold title, as tenants in common so that your respective estates will take your share if you pass, or as joint tenants with rights of survivorship.  If one or both of you have children from a prior relationship you may feel conflicted about allowing what may be your most significant asset to go to your current partner.  You can remedy this by each taking out a life insurance policy on one another that would let you “buy out” the other persons estate if one of you should pass.  The agreement should address what happens if one person moves out, including how the monthly carrying costs should be paid and whether either partner has a right to buy the other out and, if so, how the buy-out price will be calculated and paid.

If you are uncomfortable raising this suggestion with your partner consider the fact that a co-tenancy agreement can benefit both parties.  A home is a serious investment with many responsibilities. You owe it to each other to handle it in a responsible way.  Think about it, you would not let your automobile insurance lapse, risk losing your health insurance benefits or gamble with your retirement fund.  Why?  Because you know the possible cost for taking such risks could be more than you can afford to absorb.  So why take unnecessary risks when buying a home?

For most people housing is their largest recurring expense and sharing that expense with your partner can be financially beneficial.  Co-ownership may be the best choice for you, but it’s important that you and your partner discuss your expectations and, ideally, reduce it to writing with the assistance of legal counsel.  It’s always best to be informed, and whenever possible, prepared.  You cannot provide for every possibility, but at least you can address the most obvious sources of potential conflict.  Address this issue before closing and you can move on to more pleasant topics, such as what color to paint the kitchen.

Questions? Comments? Contact Attorney Bridget Gallagher at 860-659-0700 or bgallagher@bpslawyers.com.

 

 

 

David Rintoul was quoted in the Connecticut Law Tribune this week regarding the recent ERISA case of Haddock v. Nationwide Life Insurance Co. in which a class action settlement was approved with a payment of $140 million to class members, and attorneys’ fees of $49,000.  Here is a link to the article article (free registration required).  If you are interested more information on ERISA, David has a blog discussing ERISA and the process of applying for and winning long-term disability benefits.

Legal Battle Between Edible Arrangements and 1-800-Flowers Heating Up

Deliveries from 1-800 Flowers and Edible Arrangements usually bring smiles to recipients’ faces, but that is not the case when the organizations are delivering lawsuits. In November 2014, Edible Arrangements International filed a $97.4-million trademark infringement lawsuit against 1-800 Flowers.  Edible Arrangements alleged that 1-800 Flowers’ website, FruitBouquets.com, contained hidden code and used keyword advertising designed to deceive customers into thinking that Edible Arrangements was associated with FruitBouquets.com. Specifically, Edible Arrangements alleged that the phrase “edible arrangement” is embedded in FruitBouquet.com’s code and the site’s title that is displayed in browsers is “Edible Fruit Arrangements.” Overall, Edible Arrangement’s alleged that 1-800 Flowers incited a campaign to intentionally infringe Edible Arrangement’s trademarks and confuse customers.

Recently, 1-800 Flowers responded by filing a countersuit against Edible Arrangements sounding in allegations of “anticompetitive activities.” Specifically, 1-800 Flowers claims that Edible Arrangements has improperly claimed trademark rights in generic terms, such as “edible” and “edible arrangements,” which competitors need to use to market their products. 1-800 Flowers claimed that Edible Arrangement’s activities, lawsuits, and threats of lawsuits have chilled competition in the marketplace and will continue to chill competition unless Edible Arrangements is enjoined from engaging in these activities.  

No "Blurred Lines" in Jury's Decision Finding Robin Thicke and Pharrell Williams Liable for Copyright Infringement

The song “Blurred Lines” was undoubtedly one of the summer of 2013’s biggest hits. Nearly two years later, this song is still making headlines after a jury recently found singers Robin Thicke and Pharrell Williams liable for copyright infringement.

In 2011, singer Marvin Gaye’s family filed suit alleging that “Blurred Lines” copied protected elements of Marvin Gaye’s 1977 song “Got to Give it Up.” Robin Thicke and Pharrell Williams’s attorneys argued that the similarities between the two songs were not substantial and that “Blurred Lines” was intended to evoke an era and to be emblematic of the disco genre.

Nevertheless, the jury awarded more than $7.3 million in damages to Gaye’s family; two of Gaye’s children received $4 million in damages and $3.3 million of Robin Thicke and Pharrell Williams’s profits from the song. Rapper Clifford Harris, Jr., who is also known as T.I., was not found liable for copyright infringement. Recently, attorneys for Marvin Gaye’s family filed post-trial motions to stop sales of the song so that an agreement regarding future revenue sharing could be negotiated. At this time, it is unclear whether the parties will appeal this decision.

In light of this decision, some members of the music and legal communities are concerned as to the impact that this will have on future creative pursuits. Some musicians believe that this decision will chill creative expression as many musicians will avoid using common arrangements and eschew the tradition of borrowing from earlier works. While there are only so many ways in which chords and notes can be arranged in musical compositions, musicians still have the opportunity to utilize protected elements of other works by availing themselves of licensing processes to request permission to incorporate the elements into their works. 

The Future of Cover Versions of Songs Could be Dim

With advancements in technology, the United States Copyright Office has recognized the need to revise provisions of the Copyright Act. Recently, the Office completed its review of the music licensing regime. Among other recommendations, such as ensuring that music creators are fairly compensated and that the licensing process is efficient, the Copyright Office suggested that artists should have the right to preclude musicians from recording cover versions of their songs and posting them on YouTube and selling them on iTunes. Presently, many indie artists perform and record cover songs in order to showcase their musical talents and build their fan base by playing songs that are recognizable. 

Presently, Section 115 of the United States Copyright Act governs compulsory licensing. Per Section 115(a)(2), an individual can make a cover version of a work as long as the individual has obtained a compulsory license. Per Section 115(a)(1), a person may distribute phonorecords of musical works to the public if the person obtains a compulsory license.

In its study, the Copyright Office recommended revising Section 115 to afford songwriters and publishers the right to stop people from posting cover versions of songs on interactive and download sites. Publishers would have the option to negotiate interactive streaming and digital phonorecord delivery (DPD) rights for their song catalogs, which would include the ability to authorize the distribution of cover versions of songs. If a publisher elects to not negotiate interactive streaming and DPD rights for their songs, then a musician who wants to produce a cover version of a song will need to obtain a voluntary license if the musician wants to post the song on a streaming or download site.  The Copyright Office maintains that persons should still be able to record cover versions of songs on physical cds and to play covers on broadcast radio and in live concerts. 

While these are just recommendations at this time, the Copyright Office’s position demonstrates that it is attempting to balance the rights of musicians seeking to record cover versions and publishers who own the copyrights to popular songs. Nevertheless, many indie musicians may not have the resources necessary to obtain voluntary licenses in order to post their cover versions on streaming sites, which may lead the musicians to receive limited exposure.

Bill in Connecticut Legislature Strives to Decrease Marketing on Social Media Sites

When you are using social media sites, are you frustrated by the number of advertisements that ask you to allow the site or application to access your contacts list? Connecticut legislator, Representative Mitch Bolinksy, recently introduced a bill that would limit how often a site could request access to a user’s contacts list in order to send unsolicited email marketing messages to a user’s contacts.

The bill is the first of its kind in the nation and is designed to protect Connecticut’s consumers from deceptive marketing practices. Presently, upon gaining access to a user’s contacts list, social media sites and applications can send unsolicited marketing messages to third parties without the user’s permission. If this bill passes, social media websites and applications that operate in the state and presently request access to customers’ contacts lists will undoubtedly need to revise their marketing approaches.  

Connecticut Bill Could Provide Student-Athletes at Public Colleges and Universities with State Employee Status

Representative Matthew Lesser recently introduced a bill in the Connecticut legislature that would amend the Connecticut General Statutes so that student-athletes attending public universities and colleges would be considered employees for the purposes of entering into and negotiating collective bargaining agreements. As the bill is presently drafted, to be considered an employee, a student would need to receive a scholarship for at least 900% of the cost of tuition; the scholarship would need to be materially related to the student’s expected participation in intercollegiate athletics; and the revenues generated by the institution for the athletic program that the student would be participating in would need to meet a certain threshold. Per the Hartford Courant, UConn football and basketball players would be the only college athletes in the state who would be considered employees if the bill is passed as-is.

 

Connecticut General Statutes Section 5-271(a) provides that employees are protected in the exercise of their right to self-organize by forming, joining, or assisting any employee organization in collectively bargaining to resolve concerns related to wages, hours, and employment conditions. While being able to participate in collective bargaining may be advantageous for student-athletes, there are concerns that the costs associated with supporting unionization could decrease the funding that universities are able to allocate to other sports that do not generate revenue. The NCAA has taken the position that student-athletes should not be considered employees, and in December, Michigan Governor Rick Snyder signed a Public Act banning student-athletes enrolled in public universities and colleges from unionizing.  

What Must the Government Prove to Sustain the Conviction of a Tippee in an Insider Trading Case?

In its recent decision in United States v. Newman, the Second Circuit held that, in an  insider trading case, the government must prove that the tippee, the individual who received nonpublic, material information from an inside source, knew that the corporate insider received a personal benefit in exchange for disclosing confidential company information. This holding will require the government to prove that the tippee was aware that the tipper, who provided the inside information, received a personal benefit for the disclosure. This holding will also likely limit the scope of liability for individuals, such as financial analysts and portfolio managers, who trade on information that is not publicly accessible but who have no direct relationship with the individuals who provided the inside information.

Todd Newman and Anthony Chiasson made millions of dollars for their hedge funds in 2008 by trading on inside information about the earnings for Dell and NVIDIA.  Newman and Chiasson did not personally know the individual who had originally provided the nonpublic information about Dell and NVIDIA, and they had received information from various sources. Nevertheless, the trial court convicted Newman and Chiasson of securities fraud. The Second Circuit vacated Newman and Chiasson’s convictions because the court found that there was not enough evidence to prove beyond a reasonable doubt that Newman and Chiasson knew that the tipper had received a personal benefit for providing the inside information and that they were trading on information that the tipper had obtained by breaching his or her fiduciary duties to his or her employer.

An individual is not liable for insider trading simply because he or she traded on information that the individual knew was confidential and nonpublic. To be held liable, an individual must know or should have known that the individual who provided the insider information, who is known as the tipper, breached his or her fiduciary duty by providing the inside information and received a personal benefit for the disclosure. Thus, in light of the Newman decision, to convict a tippee of insider trading, the government must prove, beyond a reasonable doubt, that:

(1)  The corporate insider or tipper owed a fiduciary duty to the company that he or she is disclosing nonpublic information about;

(2)  The corporate insider breached his or her duty by disclosing confidential information to the tippee in exchange for a personal benefit;

(3)  The tippee knew of the tipper’s breach, knew that the information was confidential and knew that the tippee shared the confidential information for a personal benefit; and

(4)  The tippee used the information to trade in a security or provided the information to another individual for personal benefit.

Preet Bharara, United States Attorney for the Southern District of New York, has petitioned the Second Circuit for a rehearing in this case and argues that the court’s decision reflects a departure from precedent and may impede enforcement of securities laws.    

Does Katy Perry Have a Copyright Interest in the Infamous “Left Shark” in her Super Bowl Halftime Show?

References to “Left Shark” flooded social media after Katy Perry’s Super Bowl halftime show as viewers were puzzled by the left shark’s unique dance moves. As “Left Shark” has become somewhat of an overnight phenomenon, Katy Perry’s legal team is aggressively asserting its ownership of the “Left Shark’s” likeness.  

Fernando Sosa uses his 3-D printer to create sculptures of political figures and sell them on his website. After the Super Bowl, Sosa created and printed a shark figurine modeled after the “Left Shark,” which he sold on his website. Shortly thereafter, Sosa received a a cease and desist letter from Perry’s legal team demanding that he stop manufacturing, distributing, selling, and marketing the figurines as his actions were infringing Perry’s exclusive rights to reproduce, display, and distribute the “Left Shark’s” likeness.


Given Katy Perry is attempting to assert a copyright interest in a shark costume, it is questionable whether she would succeed on her claim of copyright infringement in court. The United States Copyright Office has taken the position that costumes are useful articles and are generally not afforded copyright protection unless there are separate artistic features that do not contribute to the utilitarian nature of the costume, which can receive copyright protection. Presently, the standard for identifying separable artistic elements is ill-defined, but the Copyright Office has stated that “fanciful costumes” can obtain copyright protection if they contain pictorial or sculptural elements that are independently recognizable and do not add to the utilitarian purpose of the costume. In the present case, it appears that the “Left Shark” costume is a useful article, and there do not appear to be any unique artistic or pictorial elements that materially distinguish the “Left Shark” costume from any other standard shark costume presently on the market.  

Cybersecurity Attack on Anthem Inc.’s Networks Compromises Customers’ and Employees’ Personal Information

         
         Health insurer, Anthem, Inc., is the latest organization to become a victim of a cyberattack. On January 29, 2015, Anthem, Inc., which is the parent company of Blue Cross and Blue Shield, Connecticut’s largest health insurer, determined that hackers had invaded its network and obtained the personal information of more than 80 million customers and employees. Based on preliminary  reports, it is believed that the hackers obtained customers’ and employees’ names, addresses, birth dates, Social Security numbers, email addresses, employment information, income data, and medical identification numbers, but the hackers did not obtain medical and financial information.

          In Connecticut, the breach could impact more than 1 million customers. Connecticut Governor Dannel Malloy has instructed residents to monitor all financial accounts because individuals may use the obtained information to open new lines of credit, open new credit cards, and steal tax refunds. In addition, experts have cautioned that hackers may use the combination of an individual’s Social Security number and medical information to perpetuate identify theft and email phishing scams, and to file false insurance claims.

          It has been reported that the compromised information was particularly vulnerable because Anthem did not encrypt the data. The Health Insurance Portability and Accountability Act (HIPAA) mandates that covered entities and health plans, such as health insurers, encrypt electronically protected health information. Specifically, the HIPAA Security Rule establishes administrative, technical, and physical safeguards that entities must use to protect the confidentiality and security of individuals’ electronic protected health information. Given that encryption can be a powerful tool in thwarting hackers’ infiltration attempts, it is worthwhile for businesses to encrypt confidential personal information even if businesses are not legally mandated to do so.