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.