Snake Oil Legalese

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Recently there has been a rash of postings on Facebook purporting to reserve peoples rights. These statements are verifiably false. Now I don’t expect people to understand the complicated minutia of the legal system, but you should have some idea of when you are protecting yourself and when you are spouting mumbo-jumbo.

When you signed up for Facebook (and likely every other service on the web) you were confronted with a Terms of Service agreement. Like almost every other web-user on the planet, you probably didn’t read it. But you did agree to it. You entered into a binding contract in exchange for the use of their service. As part of the terms of this contract you granted Facebook certain rights to the media that you uploaded to it.

To better understand this, take it out of the context of the web. You buy a car, and the bank gives you a loan. You have entered into a binding contract with the bank. You wouldn’t think that you could post a notice on your rear window that curtailed their right to, say, repossess the car if you fell behind in payments, would you? A contract lies between two (or more) parties. One side can’t simply change its terms. When Facebook wants to change its terms of service, it gives you notice and then you have the option of continuing to use their product.

Don’t be fooled by snake oil legalese. If you want to protect yourself, take appropriate steps or consult someone who can.

Please Vote!

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Please vote. If you have employees, please give them the time they need to vote. If you know someone who needs a ride to the polls, please give it to them.
Don’t ask their ideology. Just help everyone exercise their rights to help choose the direction we go as a country. I firmly believe that we are smarter as a whole, so help everyone contribute at least that little bit.

Silly Warning Labels

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File under: Silly Warning Labels

WARNING!

This is a surplus ballistic vest. It is sold “As Is” with no warranties express or implied. This vest has exceeded its useful life and therefore it is not fit for any functional purpose including, but not limited to, offering ballistic protection. The purchaser of this vest assumes all risks and is responsible for complying with all laws, rules and regulations relating t ouse and ownership of the vest.

THIS IS AN OLD VEST WHICH WILL NOT PROTECT YOU IF YOU ARE SHOT.

Lawyer vs. Lawyer

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From time to time, this blog summarizes the state of the law in Colorado. This is not intended as legal advice, and no attorney-client relationship is created by the dissemination of this information. If you have questions about what I have written, I encourage you to contact me at kdavlin@davlinlawfirm.com. If you have specific legal questions, please contact the Davlin Law Firm, pc, and we can discuss your case.

Statutes of Limitations – Don’t be S.O.L.

A common perception among business types is that when lawyers get involved they make work for themselves and kill the deal with their over-lawyering. I’m not here to argue with that. Instead, I just want to point out that sometimes we lawyers are, in fact, necessary.

I have pointed out before the folly of running a business without contracts and paperwork in place. But something else to consider is that if the other party has hired a lawyer, that lawyer probably isn’t working for you. And if he or she isn’t working for you, you should seriously consider getting one who is.

Contracts can be drafted fairly, or with a slight bias towards one party, or with a huge advantage to one side. As a non-lawyer, you might not be able to see the difference. Forum selection? Alternative Dispute Resolution? There are myriad subtle ways in which a contract can be better for one party than another.

Do yourself a favor and get someone who is definitely on your side to make sure that you are not at a disadvantage.

September 11

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Memory is a tricky thing. If you don’t make an effort to remember then stories can fade, and lessons can be unlearned. Remember this, then: Nearly 3000 people died in the attacks. Our nation was shaken, but we rose up together. Our allies showed that they had our back. People were brave. People were scared. People held out their hands to help those who needed it.

Don’t let those lessons be unlearned or forgotten. When the unthinkable happens, we can work together to pull each other up. Don’t forget to hold out your hand to help someone up – even when you are scared.

Non-Compete Agreements

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From time to time, this blog summarizes the state of the law in Colorado. This is not intended as legal advice, and no attorney-client relationship is created by the dissemination of this information. If you have questions about what I have written, I encourage you to contact me at kdavlin@davlinlawfirm.com. If you have specific legal questions, please contact the Davlin Law Firm, pc, and we can discuss your case.

Non-Compete Agreements

A business client recently asked if they could include a non-compete clause with an independent contractor. The short answer is “yes.” A more accurate answer is “yes, but…”

Colorado has a statute that prohibits agreements restricting competition, except for under some limited circumstances. These circumstances include:

1) contracts for the purchase and sale of a business or the assets of a business;

2) agreements with executives, management personnel, and their professional staff;

3) contracts for the protection of trade secrets; or

4) contracts for recovery of expenses for educating and training an employee who has been employed for less than two years.

The first category is broad and fairly self-explanatory. If you are buying a business, it is reasonable to expect that the people selling it to you will not turn around and start competing with you. You can contract to ensure that expectation.

The second category generally applies to people who are in charge of the business and work in an unsupervised manner. Merely giving them the title of “Supervisor” or “Account Executive” does not work. Colorado courts will look to the actual duties of the employee in question.

The third category is where many companies seek to save their non-compete clauses. However, it only applies to actual trade secrets. Client lists can fall into this category, but only if the company makes an actual effort to keep the information secret. This might include limiting access to such lists and advising employees of the secret nature of such information.

The fourth category is, again, fairly straightforward. You must take care not to overreach and lay out liquidated damages that are excessive and might be interpreted as punitive.

Even given these categories, a business must make sure that any restrictions are reasonable and only as broad as necessary to protect the business. Restrictions on geographic area, duration or scope must not overreach. If you only do business in Colorado, you can’t keep them from working anywhere in the nation.

It is important to note that the statute applies not just to non-compete agreements, but also to non-solicitation clauses as well as non-disclosure agreements (NDA’s). Make sure that your contracts meet the requirements of the law, or you risk having them rewritten or even thrown out by the courts.

 

Business Law

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One of the problems with representing businesses is that sometimes they go under. As an example, I was representing the new Origami shop.

But they folded.

I’m sure you heard about it. It was in the paper.

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