Why business people should not use the word “partner” unless they really mean to be “partners.”

In the last few years, more and more business people have begun to refer to other business people or companies with whom they do business as their “partners,” even if they don’t mean to be “partners” in the legal sense (e.g. becoming each other’s fiduciaries and sharing profits, losses, and liabilities).

Why is this an issue?  Here’s the hypothetical:  One fateful day, you and your “partner” fall out.  He/she doesn’t take that very well and drags you into court alleging that, by using the term “partner,” he/she is, in fact, your legal partner with all of the attending legal rights of a partner.  “Oh, no,” you argue to the judge.  We didn’t really mean to be “partners” as the law defines “partners,” but “partners” as the business community uses that term.   Do you think your argument will prevail?   Maybe it will, maybe it won’t.   But, absent settlement, resolution of that fact question may take years and years of litigation, discovery, appeals, and the attendant attorneys’ fees and costs.   See the First District’s recent opinion in Souza v. Tradelink, issued on July 14, 2014.  In that case, which has already been pending for three years, the appellate court (with one justice dissenting) has remanded the case to the trial court for more proceedings to determine this “fact question.”

If you do not intend to be legal “partners” (i.e. two or more persons joining together to pursue a business for profit), maybe you shouldn’t use that word.  If you do, you may want to run it by your lawyers first.

Disclaimer:  This information is not intended to be legal advice and should not be construed as such.

When Can the Corporate Veil Be Pierced: An In-Depth Analysis

In an opinion published on April 10, 2014, the Appellate Court for the First District of Illinois conducted an in-depth, nearly fifty-state analysis of what must be alleged and proven to pierce the corporate veil.

Of particular note, the court affirmed that, if all of the necessary elements / factors have been alleged and proven, the corporate veil may be pierced to impose liability on not only officers and shareholders, but also on anyone else who was or is in control of the corporation.

Buckley v. Abuzir, 2014 IL App (1st) 130469

 

DISCLAIMER:  This is not legal advice or advertising and should not be construed as such.  It is posted for informational purposes only.

Timing of Service of Pleadings in Illinois State Court

Question:  In Illinois state court, when is a court pleading (other than pleadings/documents that have more specific rules) legally served on another party?  When it is mailed or when it is received?  Answer: When it is mailed.

Armagan v. Peshan, 2014 IL App (1st) 121840

DISCLAIMER:  This is not legal advice or advertising and should not be construed as such.  It is posted for informational purposes only.

Illinois Supreme Court Rules that the Illinois Eavesdropping Statute Is Unconstitutional

Earlier today (March 20, 2014), the Illinois Supreme Court ruled that Illinois’s eavesdropping statute is unconstitutional, principally because it is overbroad.

The statute (720 ILCS 5/14-2) provides, with some exceptions:

“(a) A person commits eavesdropping when he:

“(1) Knowingly and intentionally uses an eavesdropping device for the purpose of hearing or recording all or any part of any conversation or  intercepts, retains, or transcribes electronic communication unless he does so (A) with the consent of all of the parties to such conversation or electronic communication . . . or

***

“(3) Uses or divulges . . . any information which he knows or reasonably should know was obtained through the use of an  eavesdropping device.”

The statute (720 ILCS 5/14-1(d)) defines “conversation” as  “any oral communication between 2 or more persons regardless of whether one or more of the parties intended their communication to be of a private nature under circumstances justifying that expectation.”

As the plain language of the statute shows, it criminalizes just about any recording that includes speech unless everyone consents.  And, as the court reasoned:

“[The statute potentially] criminalizes a wide range of innocent conduct . . . The statute criminalizes the recording of conversations that cannot be deemed private: a loud argument on the street, a political debate on a college quad, yelling fans at an athletic event, or any conversation loud enough that the speakers should expect to be heard by others.   None of these examples implicate privacy interests, yet the statute makes it a felony to audio record each one. Judged in terms of the legislative purpose of protecting conversational privacy, the statute’s scope is simply too broad.”

The cases are People v. Melongo, 2014 IL 114852, and People v. Clark, 2014 IL 115776.

DISCLAIMER:  This is not legal advice or advertising and should not be construed as such.  It is posted for informational purposes only.

But, Then Again, High School Kids May Not Dress as They Please Where There Is a Perceived Threat of Violence or Substantial Disruption.

This is another post that has nothing whatsoever to do with the work I do.  It is just more personal observations.

Following up on my prior post, yesterday the kids lost.   But it seems for good reason.

First some background:  Since the Supreme Court’s  opinion back in 1969 Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969) (black arm bands overlaid with a white peace sign), under the First Amendment, school children have been entitled to express their political opinions via their dress, even on controversial subjects, if they do so “without materially and substantially interfer[ing] with the requirements of appropriate discipline in the operation of the school and without colliding with the rights of others.”   To “justify prohibition of a particular expression of opinion,” school officials “must be able to show that [their] action was caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular  viewpoint.”  And so, under Tinker, schools may prohibit speech/clothing that “might reasonably [lead] school authorities to forecast substantial disruption of or material interference with school activities,” or that constitutes an “actual or nascent [interference] with the schools’ work or . . . collision with the rights of other students to be secure and to be let alone.”

Fast forward 45 years to Dariano v. Morgan Hill Unified Sch. Dist., which was handed down this week by the United States Court of Appeals for the Ninth Circuit.  (http://cdn.ca9.uscourts.gov/datastore/opinions/2014/02/27/11-17858.pdf.)

Once again, this issue was examined.  In Dariano, several high school students wore shirts emblazoned with the American flag.  In isolation, that would seem to be okay.  However, in Dariano, there was purportedly “evidence of nascent and escalating violence at [the school].” “The warnings of violence came . . . in [the] context of ongoing racial tension and gang violence [between the students and their Mexican school mates] within the school, and after a near-violent altercation had erupted during the prior Cinco de Mayo over the display of an American flag.  Threats issued in the aftermath of the incident were so real that the parents of the students involved in this suit kept them home from school two days later.”

Under these circumstances, the court held that the students could be required to remove the shirts, turn them inside out, or go home with an excused absence.

This time, chalk one up for school officials, who, according to the court, did the right thing to protect the students and the school.  Too bad it was at the cost of the American flag.

DISCLAIMER:  This is not legal advice or advertising and should not be construed as such.  It is posted for informational purposes only.

Nearly Fifty Years Later, the Fight over Long Hair on Boys Continues; This Time, the Boys Won

This post has nothing whasoever to do with the work I do.  It is just a personal observation.

When I was graduating from high school more than 4 decades ago, the war was raging in Viet Nam, Nixon was in office, Hair was on Broadway, and the boys in my class were forced to cut their hair — really short — otherwise they would not be permitted to graduate.  (The students, even those who were Jewish, were also forced to attend a Christian religious baccalaureate ceremony, but that is a subject for another day.)  One kid in my class, whose name I cannot remember but who was a Viet Nam veteran who had gone to war and who may have actually killed people, refused.  They let him graduate.  But all of the other boys capitulated and cut their hair.

It is now 2014.  Decades later.  And we are still fighting over whether public schools may force boys, but not girls, to cut their hair short.  The fight has gone so far as to be litigated before the United States Court of Appeals for the Seventh Circuit in Hayden v.  Greensburg Community School.

In a split decision rendered this week, the court held: “Because the hair-length policy on its face treats boys and girls differently, and because the record tells us nothing about any comparable grooming standards applied to girls playing basketball, the evidence entitles the Haydens to judgment on their sex discrimination claims.”

Chalk one up for the personal freedom of high school kids.

DISCLAIMER:  This is not legal advice or advertising and should not be construed as such.  It is posted for informational purposes only.