BRONX, NY EDITION
TheLegalAdvocate.com Complimentary Copy A whole new perspective on legal news.
February 2018
PERSONAL INJURY: Big rigs pose a deadly threat to other drivers on the road EMPLOYMENT: Laws prevent workplace retaliation from reporting bad behavior
SSDI: Age could be a big factor in Social Security disability decision
STAGGERING STATISTICS Nearly 1 in 3 mesothelioma deaths are in military veterans MASS TORT:
NURSING HOME:
SERVICES:
FDA warns consumers to stop using this medication
Manipulating patients out of individual care plans
Pre-settlement funding could be your lifeline during lawsuit
2 | I The Legal Advocate – February 2018
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The Legal Advocate – February 2018 | 3
A whole new perspective on legal news.
February 2018 Issue 3 PUBLISHER Joseph P. Belsito Joe@Belsito.com
MARKETING DIRECTOR Gregory W. Buff Greg@Belsito.com
DESIGN Gregory W. Buff Mimi Estes
LEGAL DISCLAIMER The articles published in this publication, The Legal Advocate, are not legal advice, but the reporting of news concerning general information on general legal issues commonly encountered by the public. The Legal Advocate is not a law firm and the content of the articles contained herein are not a substitute for an attorney or law firm. As such, The Legal Advocate cannot provide any kind of advice, explanation, opinion, or recommenda tion to any reader about possible legal rights, remedies, defenses, options, selection of forms or strategies the reader may have. The law is different from jurisdiction to jurisdiction, and may be subject to interpretation by dif ferent courts. Therefore, if you need legal advice for your specific problem, you should consult a licensed attorney in your area. The Legal Advocate does not endorse any particular attorney or legal service who advertises and/or is quoted in The Legal Advocate and cannot guarantee the quality, or reliability of any attorney or legal service who advertises in The Legal Advocate. Nor, does The Le gal Advocate guarantee the reliability or accuracy of any of the statements or opinions provided by any attorney or legal service who is quoted or referenced in The Legal Advocate. The attorneys quoted in The Legal Advocate may or may not be licensed in your state.
CORPORATE INFORMATION ©Copyright 2018. The Legal Advocate® is published by Belsito Communications Inc., 1 Ardmore Street, New Windsor, NY 12553. All rights reserved. Reproduction or redistribution of any part of this publication in any way is prohibited without written permission from the publisher. The Legal Advocate is a free publication. For customer service regarding distribution please call 888-BELSITO (235-7486) or email us at info@thelegaladvocate.com.
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News
Entertainment
Civil Rights...........................................4 Class Action.........................................5 Veterans Administration.......................6 Immigration..........................................7 Family Law..........................................8 Legal Services.....................................9 Elder Care........................................ 10 Mass Tort.......................................... 11 Personal Injury.................................. 12 Education.......................................... 14 Medical Malpractice.......................... 15 Nursing Home................................... 16 Social Security/Disability.................. 17 Mesothelioma................................... 18 Business........................................... 20 DWI/DUI........................................... 21 Real Estate....................................... 22 Workers’ Comp................................. 23 Tax Law............................................ 26 Bankruptcy........................................ 27 Criminal............................................ 28
Trending News................................. 24 Crossword........................................ 29 This Month in History........................ 30 Legal Ease Cartoon.......................... 30
Cover Story
An alarming 30 percent of mesothelioma victims are U.S. Veterans
18
Letter from the Publisher We’re glad you picked up this month’s edition of The Legal Advocate. For those flipping through our pages for the first time, we hope you enjoy the wide variety of subjects we’re reporting on that will likely touch on a subject affecting you, a family member or friend. This month we bring awareness to the high incidence of Mesothelioma among our service people. Asbestos products were used freely in all branches of the military. Unfortunately, after years of service, it’s that daily exposure that probably led to their diagnosis. An unfortunate outcome for so many veterans, we are dedicated to bringing up-to-date legal inforJoseph P. Belsito mation about help that’s available to them. Also in this issue, we shed light on a dangerous joe@belsito.com situation plaguing our nation’s highways: the alarming number of fatigued and overtired tractor-trailer drivers causing major injuries and fatalities. In addition to our wide range of legal topics, you’ll also find interesting and entertaining articles, puzzles and cartoons to enjoy each month. We hope you will become a regular reader. To that end, I’d love to hear your feedback on our magazine as well as suggestions for articles or ways we can improve.
4 | I The Legal Advocate – February 2018
Termination Tangle When an employer discriminates based on sexual orientation
You have been a superstar employee with the firm for 25 years, earning praise and recognition during a distinguished career. During that time, you have never hid the fact that you are LGBTQ, but your personal life was never discussed with management. You didn’t think it mattered, at least, until a chance meeting with the CEO of your company that took place while you were holding your significant others’ hand at a restaurant.
CIVIL RIGHTS
The CEO seemed uneasy when he approached your table, but you thought nothing of it until… Two days later, you are written up at work with no basis. You have never even been reprimanded. A week later, you are terminated for allegedly not addressing the issues in the writeup. Just like that, an impressive career is dashed and innuendos fly throughout the office that the real reason that you were fired is that the CEO was uncomfortable with your sexual orientation. You are hurt and devastated and wonder if you have any recourse in the form of a civil rights lawsuit.
sexual orientation. If you think you have a case, an attorney can review it, explain legal protections under federal, state, and local law, and evaluate the chances of success in court. Your lawyer can try to settle claims, help file an administrative charge of discrimination and, if needed, represent someone who has been discriminated against in a lawsuit. Sexual orientation discrimination can affect a person’s entire career, including job status, workplace environment, and health benefits. “Tolerance and social awareness have made it easier, but people who are not heterosexual still face discrimination in the workplace,” Frei-Pearson said.
“Tolerance and social awareness have made it easier, but people who are not heterosexual still face discrimination in the workplace.”
Jeremiah Frei-Pearson, who was interviewed for this article, is an attorney at Advocates United. If you would like to contact Advocates United to discuss your specific situation you can do so at 888-208-8105.
Jeremiah Frie-Pearson ATTORNEY
“If you or a loved one loses their job because of their sexual orientation or because they do not conform to gender-based stereotypes, it is possible to make a claim against an employer for wrongful termination,” said Jeremiah Frei-Pearson, an attorney with Advocates United. Title VII of the Civil Rights Act of 1964 is the primary law that prohibits workplace discrimination, including sex discrimination. According to the U.S. Equal Opportunity Commission, the law forbids sex-based discrimination when it comes to any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoff, training, fringe benefits, and any other term or condition of employment. Many states have passed laws explicitly prohibiting discrimination on the basis of gender identity and
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The Legal Advocate – February 2018 | 5
CLASS ACTION
Working Off the Y
Clock?
ou and a co-worker are ready to clock out after another grueling eight-hour shift at the factory.
Not so fast. Once again, your squirrely boss asks you to work two extra hours without pay because he’s having trouble paying the bills. The inference is that if you don’t stay you might find yourself on the employment line. Taking advantage of employees in such a manner has unfortunately become somewhat of a trend. Several major retail chains have recently been in the news for violations of wage laws. They believe themselves exempt from punishment because individual employees do not have the resources to fight the company in court. These companies are wrong. The U.S. Department of Labor’s Fair Labor Standards Act (FLSA) requires that covered non-exempt employees receive at least the minimum wage and at least one and one-half times their regular rates of pay for hours worked over 40 in a workweek. Under the law, employees who are subjected to working off the clock are entitled to back pay. Employers who make employees work without pay may also be subject to other penalties if they are in violation of labor laws. Wal-Mart, Burlington Coat Factory and Publix are among the respected brands that are facing class action lawsuits for allegedly forcing
Think Class Action
employees to work off the clock. A class action lawsuit combines the grievances of individuals with similar claims and brings forth the lawsuit as a group. Individuals are protected by the scale of the complaint as well as by the anonymity of belonging to a class, which serves as the plaintiff instead of the individual. No one should be afraid to bring forth a complaint to an attorney about being taken advantage of at work. If it’s happening to your co-workers as well, a law firm may be able to combine individual grievances into a class action lawsuit, creating a more powerful case and protecting individuals from possible retaliation. While investigations are ongoing into the possible wrongdoing of companies that disregard wage law, no employee can be singled out for punishment. Employees can make reports to attorneys anonymously as well, protecting their positions within the company. Let the law protect you. Monetary settlements are only a part of the action you take as you are also setting a precedent to protect yourself and your co-workers from being taken advantage of. Insight for this article was provided by Advocates United. If you feel you’ve been affected by a situation such as this one you may contact Advocates United at 888-208-8105 to discuss it further.
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6 | I The Legal Advocate – February 2018
Civilian Struggle Working through the challenges of unemployability after active duty You served two decorated tours in Iraq and another in Afghanistan, but were forced to retire from active duty due to a severe head injury sustained when your convoy drove over an improvised explosive device (IED). Your return to civilian life is not what you expected. After struggling to find a job, you start having issues at work: memory loss, moodiness, dizziness, and an inability to get along with your boss and coworkers. You are unable to keep this job. You look for VETERANS other jobs. You may ADMINISTRATION be able to get jobs, but you are never able to keep them for more than a couple of months. You cannot support your family or contribute as you had before. Nothing is what you expected it would be. You served your country with honor and asked for nothing. You have heard that the U.S. Department of Veterans Affairs (VA) is there to help with situations just like yours. Upon the urging of a buddy from your unit, you apply for VA compensation benefits for service connected disability for your Traumatic Brain Injury (TBI) and Post Traumatic Stress Disorder (PTSD), and for orthopedic injuries sustained in the explosion during service. You receive a decision granting you compensation for service connected disability for TBI, PTSD, and degenerative disc disease of your back and neck with associated nerve pain. Your overall rating is an 80%, but you
“VA benefits aren’t supposed to be about saving the VA money, but about providing Veterans with the benefits that were promised and are now owed to them.”
Nancy Y. Morgan ATTORNEY
are still unable to get or keep employment. When you are honest with yourself, you know you never will be able to work meaningfully again. You wonder if these are all the benefits you can get from the VA. “When a Veteran files a claim for benefits or a claim for increased rating, and there is evidence that the Veteran is unemployable, under the law, the VA has to consider and
adjudicate the issue of unemployability,” said Nancy Y. Morgan, an attorney with Advocates United. “Often though, the VA does not consider this issue in its rating decision unless the Veteran has filed a specific claim for it. That’s just not right.” If a Veteran is unable to engage in gainful employment due to one or multiple service connected conditions but his or her overall disability rating falls short of the 100% rate, the Veteran might be eligible for benefits at the total disability rate. The Veteran might also be entitled to some benefits from the Social Security Administration (SSA). Morgan explains, “the difference between a 90% and 100% rating is substantial. It is by far the largest pay jump. So, ignoring the unemployability issue, frankly, saves the VA money. VA benefits aren’t supposed to be about saving the VA money, but about providing Veterans with the benefits that were promised and are now owed to them.” An experienced accredited VA disability attorney can help the Veteran to make sure that the law is being followed, the Veteran’s rights are protected, and the eligible benefits maximized. Nancy Y. Morgan, who was interviewed for this article, is an attorney at Advocates United. If you would like to contact Advocates United to discuss your specific situation you can do so at 888-208-8105.
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The Legal Advocate – February 2018 | 7
IMMIGRATION
Employers and H-1B visa holders should expect tougher times ahead “Regardless of the position ultimately taken by the Trump Administration, one should seek qualified counsel throughout the H-1B process.”
Frank Massaro ATTORNEY
Foreign born workers and their employers were often targets of Donald Trump’s 2016 Presidential campaign, so it should come as no surprise that his administration plans on discouraging the use of H-1B visas.
determined.
According to the U.S. Department of Homeland Security, the H-1B program allows companies in the United States to temporarily employ foreign workers in occupations that require the application of highly specialized knowledge and a Bachelor’s degree or higher in the specific specialty, or its equivalent. H-1B specialty occupations usually include fields such as science, engineering and information technology.
• Work permits for the spouses of H-1B workers will be eliminated.
“Obtaining H-1B status is a complicated procedure,” said Frank Massaro, an attorney with Advocates United. “Regardless of the position ultimately taken by the Trump Administration, one should seek qualified counsel throughout the H-1B process.” Under the Department of Homeland Security’s 2018 regulatory plan, H-1B employers, H-1B employees, and their family members could be dramatically affected by new regulations. The plan, along with the “Hire American” executive order signed by President Trump, proposes to: • Require pre-registration and preselection for companies that want to sponsor new H-1B workers. The selection criteria have yet to be created. • The term “specialty occupation” relating to H-1B’s will be redefined so that only “the best and brightest foreign nationals” qualify. How the “best and brightest” will be judged, or how the standards for “specialty occupation” will be applied have not been
• The terms “employment” and “employer-employee relationship,” which are key to the H-1B program, will be redefined to “protect U.S. workers and wages.”
H-1B visa changes that took place last year and are likely to continue include, • The “Hire American” executive order includes language that the government will “ensure that H-1B visas are awarded to the most skilled or highest paid” which may make it more difficult for employers to seek these visas to fill entry level professional positions. • Employers who seek H1-B visas to fill computer programmer positions, especially if their pay scale is at the lower end and duties are described as “complex” or “unique,” should expect their applications to come under scrutiny according to a March 2017 US Citizenship and Immigration Services (USCIS) policy memo. “I’ve been practicing immigration law for over 35 years,” Massaro added. “I remember when there were an unlimited number of H-1B visas issued to qualified applicants. Rules and regulations continue to change with ever growing restrictions. Employers and employees seeking H-1B status will need to stay current with these changes.” Frank Massaro, who was interviewed for this article, is an attorney at Advocates United. If you would like to contact Advocates United to discuss your specific situation you can do so at 888-208-8105.
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8 | I The Legal Advocate – February 2018
Consumer legal funding could be your lifeline It’s possible to get cash before your settlement with no risk of the outcome Being a provider for your family isn’t easy but, at least before the accident, you were able to pay your bills on time so your family could finally have some financial security. After your injuries caused a loss of income, the bills, unfortunately, kept coming. And now with the holiday season upon us, you are left wondering how you will make ends meet.
LEGAL SERVICES
credit card payments or payments on other necessities which could have an immediate and longterm impact on a family’s finances. Consumer legal funding helps families avoid these financial traumas caused by accidents.
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Phil Greenberg, who was interviewed for this article, is General Counsel at Oasis Financial. If you would like to contact Oasis Financial to discuss your specific situation you can do so at 800-694-6084.
You’ve been assured that the proceeds expected from your lawsuit will more than cover your medical and living expenses, but lawsuits can take a long time to be resolved. What are you supposed to do right now? It may be years before you get your day in court, and until you get the compensation you deserve, you need a way to pay your bills now. Pre-settlement funding, or consumer legal funding, may be a way to get you the cash you need now. A consumer legal funding company provides non-recourse money in exchange for a portion of the anticipated future settlement proceeds. If the case is settled, the consumer legal funding company receives the previously agreed upon amount they purchased. It is not a loan. There are no periodic payments or fees. Best of all, there is no risk to the consumer. If you lose your case, there is nothing owed to the consumer legal funding company. According to Phil Greenberg, General Counsel at Oasis Financial, “Consumer legal funding helps families by providing a safe financial choice to replace lost income now, not years after an accident occurred that disrupts or changes your life.” Many families are unprepared to face a life-altering emergency. More than half of U.S. households are surviving paycheck-to-paycheck, which means that a car accident, job loss, illness, or injury could put a family at serious financial risk. If an injury prevents a plaintiff from working, it may be difficult to stay up-to-date on bills. While waiting for a claim to settle, a family may be forced to miss
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“Consumer legal funding helps families by providing a safe financial choice to replace lost income now, not years after an accident occurred that disrupts or changes your life.” Phil Greenberg GENERAL COUNSEL, OASIS FINANCIAL
The Legal Advocate – February 2018 | 9
Ending
Abuse
What to do if your spouse has turned abusive The first time that your husband hit you, you chalked it up to a stressful day at work. However, that fateful night started a pattern of abuse, rendering you terrified. Several questions race through your mind: When will he snap again? Will he seriously hurt me? Would he ever hit our children?
FAMILY
You fear for your family’s safety and need to get out of the relationship, but don’t know what to do. “The best thing a domestic violence victim can do is take the bold and courageous step and contact the police, thereby taking legal action,” said Jennifer Safier, an attorney with Advocates United. “Abuse can paralyze victims, worried that taking action will trigger more violence. The reality is the best way an abuse victim can protect themselves and their family is to take immediate. “ According to the National Coalition Against Domestic Violence (NCADV), nearly 20 people are physically abused by an intimate partner each minute in the United States. The Centers for Disease Control reports that more than 10 million men and women are victimized by intimate partner violence each year. Many victims hide their injuries: THE NCADV reports that only 34 percent of people who are injured by intimate partners receive medical care for
their injuries. One in three women has been victims of some form of physical violence by an intimate partner in their lifetime. Contacting the police is the first step a victim of domestic violence should take. According to Safier, “making sure that the victim and children are safe from violence and harm is always the first priority. Once the entire family is safe from immediate danger the abused spouse should take legal action to insure they will remain protected. This should be done with the help of a Family Law attorney. Utilizing the legal system is a critical component for ending the abuse permanently. A family lawyer can help victims of abuse gain custody of their children and/or obtain a restraining order that requires an abuser to stay away from the victim and children. If an abusive spouse violates a court-ordered restraining order, they will be arrested. In some cases, both civil and criminal remedies may be necessary. But the first step to escaping a cycle of violence and ending the abuse is gaining the courage to reach out for help.
“The best thing a domestic violence victim can do is take the bold and courageous step and contact the police, thereby taking legal action.”
Support and compassion await you. Jennifer Safier, who was interviewed for this article, is an attorney at Advocates United. If you would like to contact Advocates United to discuss your specific situation you can do so at 888-2088105.
Jennifer Safier ATTORNEY
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10 | I The Legal Advocate – February 2018
RAINY DAY RELIEF Can I prevent my house from being used to finance my nursing home care? Over the years, you and your spouse have discussed the possibility of needing long term care in the future.
ELDER CARE But there’s one problem: You
haven’t done any planning and if you don’t have private, long-term care insurance you could be in for a surprise. Without proper planning, your assets, including your home, may be used to pay for your long term care. However, there are steps you can take to shield your home from paying for long term care utilizing the Medicaid program, which pays for the health benefits of individuals with low income. “Medicaid planning involves a number of steps a person can take which may make it easier to qualify for Medicaid and prevent the government from using a home and other assets to pay for nursing home care. It’s a very technical area of the law and timing is critical,” said Joseph P. Rones of Advocates United, who helps families and individuals with Medicaid planning. Medicaid utilizes a five year “look back” period to discourage people from giving away assets to qualify for the program. If assets (such as a house) have been properly transferred at least five years before the person applies for Medicaid, those assets won’t be used to determine
if the person qualifies for benefits or used to reimburse Medicaid for its expenses. If you own your home and want to prevent Medicaid from using it to pay for your care you could create an irrevocable trust before the “look back” period. An irrevocable trust is a legal structure that can’t be changed once it’s created. You (the grantor) create the trust. The house is the subject of the trust. The grantor names a trustee to manage the house and follow your instructions. You name yourself as beneficiary (the person who benefits from the trust) and you can reside in the house as long as you’re willing and able to do so. As part of the trust, you can instruct the trustee to transfer the house to a family member, other person or charity or sell it with the proceeds to be distributed as you see fit.
“You can’t divest yourself of assets one day, then qualify for Medicaid the next. You don’t want to ignore this problem until it becomes a crisis.”
“You can’t divest yourself of assets one day, then qualify for Medicaid the next. You don’t want to ignore this problem until it becomes a crisis,” Rones warned. Joseph P. Rones, who was interviewed for this article, is an attorney at Advocates United. If you would like to contact Advocates United to discuss your specific situation you can do so at 888-2088105.
Joseph P. Rones ATTORNEY
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The Legal Advocate – February 2018 | 11
FDA warns consumers to stop using Limbrel pain medication If you or a loved one is using the pain medication Limbrel, you must read this article. Your health depends on it
According to the Food and Drug Administration (FDA), consumers should stop taking Limbrel, a capsule marketed to help those with osteoarthritis. The FDA asked its maker, Primus Pharmaceuticals, to voluntarily recall Limbrel, in December of 2017. The company withdrew the product from MASS TORT the market shortly afterward. The agency states it’s investigating potentially serious side effects of the product. “If you’re currently using Limbrel, you should immediately contact your physician to discuss the FDA’s warning and share any symptoms you may be experiencing,” said attorney Andrew Finkelstein of Advocates United. “Tests may be ordered to determine if Limbrel has caused side effects or organ damage.” According to the FDA, consumers should avoid Limbrel because it can cause liver injury and a lung condition called hypersensitivity pneumonitis. Medical professionals have been asked by the FDA to contact their patients who use Limbrel and advise them to stop taking it. According to an FDA report, as of December 4, 2017, the agency had received 200 adverse event reports regarding Limbrel. In 30 of those reports, there was sufficient information for FDA medical experts to determine that Limbrel was likely associated with these adverse events. The FDA warns that: • Symptoms of drug-induced liver injury can vary and may include jaundice, nausea, fatigue, and gastrointestinal discomfort. • Symptoms of hypersensitivity pneumonitis can vary and may include fever, chills, headache, cough, chronic bronchitis, shortness of breath or trouble breathing,
weight loss, and fatigue. If you experience any of these symptoms, contact your health care provider immediately. Specific facts must be established before a drug manufacturer can be held responsible for a drug-related injury. It can also be difficult to prove the drug you are taking has harmed you and, even if it did, demonstrating the extent of the damages it caused is complicated.
“When the risks of side effects of drugs are greater than the benefits provided, then drug manufacturers must be held responsible for the unnecessary harm they cause.”
Andrew Finkelstein ATTORNEY
“Pharmaceutical companies and healthcare providers have a responsibility to ensure the medication they are developing and prescribing is as safe as possible,” Finkelstein said. “When the risks of side effects of drugs are greater than the benefits provided, then drug manufacturers must be held responsible for the unnecessary harm they cause.” Andrew Finkelstein, who was interviewed for this article, is an attorney at Advocates United. If you would like to contact Advocates United to discuss your specific situation you can do so at 888-208-8105.
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12 | I The Legal Advocate – February 2018
PERSONAL INJURY
Semi-
Dangerous Almost one in three commercial truck drivers suffer from sleep apnea
Sleep Apnea Facts: ■ People with sleep apnea repeatedly stop breathing while they’re sleeping, sometimes for a minute or longer. ■ Many people have no idea that they have sleep apnea. It is estimated that nearly 80% of people who have this disorder are undiagnosed. ■ Left untreated, sleep apnea may lead to other health complications, such as high blood pressure, heart disease, stroke and depression.
Sufferers of this sleep disorder are 2.5 times more likely to be the driver in an accident. ■
■ Weight gain increases your chances of getting the condition.
F
or many, there is always apprehension when a semi-truck, commonly known as an 18-wheeler, speeds by you on the highway. Talk about white knuckle driving. With your children in tow, you grab the steering wheel tightly as the commercial vehicle nearly veers into your lane at 65 miles per hour, before jetting by. What’s even more concerning, according to a recent study, is almost one out of three commercial truck drivers have mild to severe sleep apnea which affects their alertness and performance. “Commercial trucks are critical to our economy but every year accidents involving them result in thousands of Americans killed or being severely injured,” said Andrew Finkelstein, an attorney with Advocates United. “Commercial drivers with untreated sleep apnea are more likely to be involved in a fatigue-related crash.”
“When trucking companies overwork their drivers and allow fatigued drivers to get behind of the wheel of these big rigs and travel on the roads where our families are we must hold them accountable for all the damages they cause.”
These vehicles can legally weigh up to 80,000 pounds and if negligently driven or maintained can become a destructive force on roads and highways. “The force of a fully loaded tractor trailer hitting a passenger vehicle at highway speed can easily kill or severely injure anyone inside,” Finkelstein said. “Even if the truck is on a side road going at a moderate speed the impact with a smaller vehicle can be devastating so with that power comes the responsibility to be as safe as possible.” There are about 5.6 million tractor trailers registered for use in the United States and thousands of Americans are killed in accidents involving
Andrew Finkelstein ATTORNEY
heavy trucks and tens of thousands more are injured each year. According to the Federal Motor Carrier Safety Administration (FMCSA), there were 4,311 large trucks and busses involved in fatal accidents in the U.S. in 2015, the last year for which statistics are available. That is a 26 percent increase from 2009.
The study conducted by the University of Pennsylvania, which FMCSA and the American Transportation Research Institute of the American Trucking Associations sponsored, concluded that almost one-third (28 percent) of commercial truck drivers have mild to severe sleep apnea. Sleep apnea affects a driver’s sleep and their daytime alertness and performance. Untreated sleep apnea can make it difficult for them to stay awake and react quickly while driving. According to FMSCA, studies conclude that people with untreated sleep apnea have an increased risk of being involved in a fatigue-related motor vehicle crash. In 2017, the U.S. Department of Transportation (DOT), considered a requirement that would require truck drivers to be tested for sleep apnea, but later scraped the idea. Instead, the onus remains on trucking companies to test drivers for this potentially dangerous condition. “When trucking companies overwork their drivers and allow fatigued drivers to get behind of the wheel of these big rigs and travel on the roads where our families are we must hold them accountable for all the damages they cause,” Finkelstein said. “Sharing the road with tractor trailers is a scary proposition. But it’s like everything else: The more dangerous something is, the safer we must make it.” Andrew Finkelstein, who was interviewed for this article, is an attorney at Advocates United. If you would like to contact Advocates United to discuss your specific situation you can do so at 888-2088105.
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14 | I The Legal Advocate – February 2018
Ending Net Neutrality:
Good for service providers, bad for students
When the Federal Communications Commission (FCC) recently ended net neutrality, you might have been concerned with slower download speeds on your phone and laptop or increased costs for downloading your favorite movies.
EDUCATION
Net neutrality prohibits internet service providers (ISP’s) from speeding up, slowing down or blocking any content, applications or websites people want to use or browse. The regulation was meant to treat ISP’s as a utility such as your power company, not like other businesses that you can freely choose from. Certainly, that is an inconvenience, and many people think that deep-sixing net neutrality violates our right to communicate freely online. However, the FCC’s bold move could have other implications, even your children’s education could be impacted by it. “Ending net neutrality could make the jobs of schools, colleges and libraries more difficult and expensive, impacting the quality of education for our kids,” said Jennifer Safier of Advocates United, who represents families involved in education law issues. A U.S. Senate bill that would reverse the FCC’s decision to repeal net neutrality received its 30th co-sponsor in January, allowing the proposed legislation to receive a vote on the floor. However, there is no guarantee that the Senate will be able to overturn the FCC’s changing of the popular net neutrality rules.
Many educators and student advocates are disappointed that net neutrality has been repealed. Greater access to the internet at lower costs has benefited students across the country in many ways:
“Ending net neutrality could make the jobs of schools, colleges and libraries more difficult and expensive, impacting the quality of education for our kids.”
specialized materials. • Homebound students can attend classes or use online academies. • In 2002 about 10 percent of college level students participated in at least one online course; that number had increased to at least 30 percent by 2015. Video lectures, online resources and basic research at universities could be impacted if fees are imposed to download materials. • School assignments increasingly require some level of internet research or use. Students without high speed internet access at home often use WiFi connections at public libraries. Public libraries may not be able to absorb higher costs of internet services. Proponents of the deregulation claim consumers can switch their ISP’s if they become dissatisfied with them. However, it’s been estimated that 43 percent of school districts have only one available internet provider.
Jennifer Safier ATTORNEY
• Schools in lower income areas can access to high quality educational materials through the internet, helping their students catch up to those at better funded schools. • Students with learning disabilities can access
“The end of net neutrality is great news for ISP’s, but it creates a lot of uncertainty for parents and their children. Our country’s educational interests should be paramount. This deregulation will only benefit big business who will now be able to charge more for services that were once considered standard.” Safier said. Jennifer Safier, who was interviewed for this article, is an attorney at Advocates United. If you would like to contact Advocates United to discuss your specific situation you can do so at 888-208-8105.
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The Legal Advocate – February 2018 | 15
The Elements for a
MEDICAL MALPRACTICE CLAIM You kissed your elderly dad on the cheek, ran your hands through his graying hair, before he was wheeled into what you were told was routine knee surgery.
MEDICAL MALPRACTICE
As it turns out, the procedure was anything but routine. Your father suffered from an infection post-surgery that landed him back in the hospital for two weeks. Meanwhile, his knee is now actually giving him more trouble and he can barely walk.
“For some patients, doctors and healthcare providers can make mistakes which can have devastating results on patients and their families.”
“Medical providers are supposed to provide care in a safe and efficient manner under the guidelines of accepted medical practices,” said Kenneth Fromson, an attorney with Advocates United. “For some patients, doctors and healthcare providers can make mistakes that can have devastating results on patients and their families.”
Studies by Harvard Medical and JAMA con-
If you feel that you are a victim of medical malpractice, you should consult with an attorney. The statue of limitations does apply for these types of cases, meaning that you would have to file a lawsuit within a certain time period. A seasoned lawyer can review your potential case and closely examine pertinent information such as your medical records. Counsel will also conduct interviews with you and your loved ones about the hardship. Fromson recommends that patients ask their caregivers a list of written questions they have before and after treatment. If something doesn’t feel or seem right, don’t be afraid to speak up. Don’t be intimidated by what is a large medical system.
Looking to protect your beloved dad, you wonder if you have a medical malpractice case.
According to the Journal of American Medical Association (JAMA), medical malpractice is the third leading cause of death in the United States. Only cancer and heart disease kill more people. JAMA statistics show that medical malpractice claims result in a payout of every 43 minutes.
• Approximately 700,000 patients suffer from some sort of malpractice every year in the U.S.
Kenneth Fromson ATTORNEY
cluded that: • An average of 75,000 to 100,000 malpractice claims are filed each year. • Only one out of every eight incidents of medical malpractice are pursued with a legal claim or other followup.
“Doctors, nurses and healthcare professionals make up the fabric of our communities, but just like everyone else they aren’t perfect,” Fromson said. “They make mistakes that can have life-altering consequences for patients who have a right for recourse to help them get their life back together.” Kenneth Fromson, who was interviewed for this article, is an attorney at Advocates United. If you would like to contact Advocates United to discuss your specific situation you can do so at 888-208-8105.
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16 | I The Legal Advocate – February 2018
NURSING HOME
Broken Promises How some nursing homes manipulate patients out of individual care plans
I
t was a difficult decision, but you had to put your aging mother in a nursing home due to her condition and many needs.
The silver lining was that the facility was beautiful and the staff was accommodating and friendly. Nursing homes are supposed to prioritize patient care, but some care more about their bottom line, and seek ways to increase profits. There is often a fine line between maintaining the top-level care which families expect and corporate responsibilities. One practice that nursing homes may employ is limiting the number of services their staff provides. Management will try to justify their decisions by saying that streamlined responsibilities are essential for a healthy work environment and that the staff is more productive because of these policies. Although productive employees are essential to the efficacy of a nursing home, individualized care is the right of every nursing home resident, and it is important that each patient be treated according to his or her specific needs. “The Nursing Home Reform Act of 1987, which applies to all facilities participating in either Medicare or Medicaid Programs, requires nursing homes provide services to accommodate
“...it is essential that nursing home staff learn about a patient’s life history, daily routines, and other personal information to develop a nursing regimen that will fully support them during their stay.”
Michael Feldman ATTORNEY
the medical, physical, psychological, and social needs of residents in accordance with a written plan of care,” said Michael Feldman, an attorney with Advocates United.”
In some instances, nursing homes perform routine physical assessments that fail to evaluate a patient’s strengths and weaknesses before being admitted to the nursing home. “Individual care plans start from the very beginning with the patient assessment,” Feldman added, “and it is essential that nursing home staff learn about a patient’s life history, daily routines, and other personal information to develop a nursing regimen that will fully support them during their stay.” If a resident is receiving substandard care by nursing home staff or is being denied reasonable services, they should contact their state’s longterm care ombudsman, who can look into the matter and determine the severity of the offense. An attorney can also provide clarity and be a source of support if filing a claim or negotiating with the nursing home is necessary. “When we put a loved one in a nursing home, we expect a certain level of care,” Feldman said. “You put your faith in that facility. That care should never be compromised. Period.” Michael Feldman, who was interviewed for this article, is an attorney at Advocates United. If you would like to contact Advocates United to discuss your specific situation you can do so at 888-208-8105.
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The Legal Advocate – February 2018 | 17
SOCIAL SECURITY DISABILITY
Think Your Age Won’t Affect Your Chances Of Getting SSDI?
Think Again
In the middle of a successful career you are injured at work and no longer able to perform your duties. Not a problem, right? You can just apply for Social Security Disability Insurance (SSDI). You might want to think again. SSDI has helped many Americans across the country, but it has also has left many of those in need without benefits because of their age. Maybe even your physician has assured you that you are disabled and qualify for benefits. Still, that doesn’t mean that the Social Security Administration will provide much needed benefits. “The judges will weigh the opinion of a primary treating physician, said Pam Thomas, an attorney with Advocates United. “However, rarely do we see a judge giving a high regard to the treating doctor. The administration wants to see proof of disability from different doctors over a long period of time.” Your age can often affect your chances of receiving disability insurance benefits. “Usually a person must have some extreme disability that prevents them from functioning daily,” Thomas said. “When it comes to younger people, generally under the age of 50, judges start to question if a disability is so extreme at that age to consider them permanently disabled.” According to various studies, approximately 71.5 percent of initial SSDI benefit claims are denied. Denials may be appealed and only about 44 percent of those cases are approved. If denied, you can request a review by the SSDI Appeals Council.
Filing a lawsuit is the last option for denied claimants. According to Social Security Administration statistics, in 12 percent of those cases were remanded back to the Appeals Court for another hearing. If you fall between the ages of 18 and 50 years old, your case can be difficult. These
“When it comes to younger people... judges start to question if a disability is so extreme at that age to consider them permanently disabled.” Pam Thomas ATTORNEY
types of claims can take years before they get reviewed by a judge. If your claim is rejected, it could take as long as two years for your claim return to court. Indeed, qualifying for SSDI can be a confusing process, but statistics show that an attorney can help you through what can be a dizzying process. Pam Thomas, who was interviewed for this article, is an attorney at Advocates United. If you would like to contact Advocates United to discuss your specific situation you can do so at 888-208-8105.
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OUR
Victim
Vets
MESOTHELIOMA
At least 30 percent of mesothelioma victims are veterans
Y
ears after serving in the US Navy, you start experiencing fatigue, shortness of breath and fatigue.
You might be suffering from cancer. Many veterans have been diagnosed with Mesothelioma, an aggressive form of the disease. “Veterans who served in World War II, Korea and Vietnam are just now being diagnosed with Mesothelioma because of its long latency period,” said Joe Belluck, an attorney with Advocates United. “Asbestos-related diseases claim the lives of at least 10,000 vets every year. That accounts for more than 30 percent of all cases diagnosed. The sad fact is that these diseases were preventable but the asbestos companies never warned about the dangers of asbestos.” Asbestos was prized by the military for its heat-resistant qualities, ensuring that asbestos was widely used on ships and planes, and in shipyards. The U.S. Navy is the military branch with the highest usage of asbestos, but over the years, thousands of Air Force, Army, Coast Guard, Marine personnel and their spouses have also developed Mesothelioma due to asbestos exposure.
into this deadly cancer. Mesothelioma treatments are available. However, according to the Mayo Clinic, there is no cure for the mesothelioma.
Joe Belluck ATTORNEY
According to Belluck, veterans who have received a Mesothelioma diagnosis can file an asbestos-related claim with the VA and an attorney can help them with
“Asbestos-related diseases claim the lives of at least 10,000 vets every year. That accounts for more than 30 percent of all cases diagnosed. The sad fact is that these diseases were preventable but the asbestos companies never warned about the dangers of asbestos.”
According to Mesothelioma.com, the average life expectancy for mesothelioma patients is 12 to 21 months. How long a patient lives depends on several factors including age, stage of the disease, and
HIGHEST RISK JOBS FOR MESOTHELIOMA • Military Veterans
Military veterans make up just eight percent of the country’s population, yet have suffered 30 percent of all known deaths caused by malignant mesothelioma. Any veteran who served in shipyards, on ships or planes, did maintenance on equipment or worked as a mechanic may have been exposed to asbestos.
• Asbestos textiles manufacturing
Mesothelioma is an asbestos-related illness. The fibers asbestos gives off when it is disturbed can be easily swallowed or inhaled, making them highly toxic. These tiny fibers slowly cause cells within the body to mutate and can transform
• Firefighters
• Asbestos mining • Brake repair mechanics • Construction, workers • Shipbuilding
overall health. Approximately 40 percent of patients live past one year and nine percent live longer than five years.
that process. Veterans suffering from Mesothelioma also need to file a claim against the makers of asbestos products that caused the wrongful exposure. Our office does VA claims for free as part of our work on a Veteran’s case. Any compensation received from asbestos litigation is treated separately from VA benefits, and additional VA benefits may be pursued depending on the veteran’s disabilities. “Our proud veterans fought for this country, putting their lives on the line for us every day,” Belluck said. “Unfortunately, Mesothelioma is another dangerous enemy that these men and women now face and they deserve the best representation to insure their families are protected.” Joe Belluck, who was interviewed for this article, is an attorney at Advocates United. If you would like to contact Advocates United to discuss your specific situation you can do so at 888-208-8105.
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20 | I The Legal Advocate – February 2018
BIZ
When to set your sights on incorporating a business
You started your business as a sole proprietorship and it took off in the form of the opening of additional popular locations.
BUSINESS
It’s been some run, but you’ve seen businesses face financial issues, you’ve seen them sued. You start to wonder about the potential benefits of formally incorporating your successful business. “One of the primary reasons people choose to incorporate their businesses is for the liability protection it provides,” said Joseph Rones, an attorney with Advocates United. “If a corporation or a limited liability company (LLC) shareholder or member is sued, the owners’ risk is generally limited to their stake of the company’s holdings. Business owners run the risk of losing their own investment in the business, but it doesn’t extend to personal assets.”
“While there is a cost associated with forming a corporation or a limited liability company, there are arguably greater costs associated with not taking that step.” Joseph P. Rones
The scenario for unincorporated business owners is much different: Owners’ personal assets and holdings are potentially at risk of creditors’ claims and damage awards in lawsuits. Incorporating a business can also help to protect its brand and enhance its credibility with customers and service providers.
more professional,” Rones said. “Incorporating your business may help you attract more customers, even if that wasn’t your primary reason for taking that step.”
“There’s something about seeing ‘Inc.’ or ‘corporation’ in a business’ name that can make it appear
There are also tax considerations that come with incorporating a business. However, anyone
ATTORNEY
INC considering that step should carefully evaluate the pros and cons before making a decision. Where a sole proprietor, partner or single-member LLC is a “pass-through” entity for tax purposes, corporations are separate legal entities for tax purposes. This means that income from a C-corporation is taxed at the corporate level before being distributed to owners, who are then taxed on it again. Some business owners might have the option of forming an S-corporation instead, which is taxed more like a partnership. Corporations are separate legal entities with perpetual existence. Another reason to incorporate a business is because doing so can help business owners increase flexibility and liquidity for their ownership shares, making them more easily transferable. Incorporating may also be used in probate avoidance planning. “While there is a cost associated with forming a corporation or a limited liability company, there are arguably greater costs associated with not taking that step. Anyone with an unincorporated business should evaluate the potential pros and cons of incorporating,” Rones said. Joseph Rones, who was interviewed for this article, is an attorney at Advocates United. If you would like to contact Advocates United to discuss your specific situation you can do so at 888-208-8105.
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The Legal Advocate – February 2018 | 21
DWI/DUI
What happens If you refuse a breathalyzer test? It was a stressful day at work, which led to a few drinks at the bar after punching out. Now life gets even more stressful. You are pulled over by the police on the way home and they want to administer a Breathalyzer test on you. If you blow, you know the night may go downhill. Do you take a chance and refuse the test to avoid a record of your blood-alcohol concentration (BAC)? This is actually a strategy that has been tested by many: According to the National Highway Traffic Safety Administration (NHTSA), about one in five drivers suspected of driving while intoxicated refuses to take a BAC test. But is it worth a shot? “While it may be your choice to refuse to blow, that choice comes with its own consequences,” said Vince Imhoff, an attorney with Imhoff & Associates. In most states, there are laws that call for suspension of your driver’s license for up to 12 months if you refuse to submit to a Breathalyzer or a blood or urine test. “The breath test itself is just one way of many to prove the case against you,” Imhoff said. “So a refusal to blow does not mean that charges cannot be brought.” According to the NHTSA, each day almost 29 people in the United States die in alcohol-impaired vehicle crashes — that’s one person every 50 minutes. Drunk-driving fatalities have fallen by a third in the last three decades. However, drunk-driving crashes claim more than 10,000 lives per year. Law enforcement takes these infrac-
tions seriously and refusing a Breathalyzer likely won’t save you from being ticketed for DWI. A police officer’s observations, witness testimony and video of a person operating their vehicle may be submitted as evidence if a case goes to trial. If you submit to a test hours later at the police station, your blood alcohol level at the time you were pulled over may be calculated based on how much time has elapsed. Even your refusal to take a Breathalyzer test may be used against you in court. While every case is different, it is unlikely that refusing to take a Breathalyzer or another blood alcohol content test will protect you from DWI charges. The best and time-tested advice is simple: Don’t drink and drive, period. But if you do end up getting pulled over for a DUI, the best advice is don’t help incriminate yourself when speaking with the officer. Many people falsely believe if they talk to the officer like a friend, make jokes, and try to turn the situation into a pleasant experience that somehow the police officer will let them off with a warning. Instead, keep your mouth shut. Obey the officer’s commands and provide them with no additional evidence to use against you. If you are arrested, immediately contact a DUI attorney who will be able to fight the charges against you and negotiate reduced charges with the prosecution. When contacting a DUI attorney, make sure the law firm provides a free consultation to discuss your case. This is your opportunity to discuss the DUI case with the law firm, and to ensure the case manager clearly explains the options available to you and understands your unique circumstances.
“The breath test itself is just one way of many to prove the case against you, so a refusal to blow does not mean that charges cannot be brought.”
Vince Imhoff ATTORNEY
Vince Imhoff, who was interviewed for this article, is a criminal defense attorney and managing director with Imhoff & Associates, PC. If you would like to contact Imhoff & Associates for a free consultation to discuss your specific situation, you can do so at 888-445-6219.
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22 | I The Legal Advocate – February 2018
The Most Common Legal Issues in
Commercial Real Estate Transactions
You are an up and coming commercial real estate agent, the sky is the limit for your career.
REAL ESTATE The transactions are piling
up and so are the commissions and “atta boys” from your firms’ partners. However, one thing to keep in mind is that as the scale of real estate transactions increase, so does the potential for legal issues, which can cause headaches and jeopardize deals. Some of the most common legal issues in commercial real estate transactions can be avoided with a bit of foresight and strong legal advice. This process starts with due diligence. Researching the nuances of the title and zoning for a property can be an arduous task, even for an experienced commercial real estate professional. Between identifying easements, property corners, issues with intended use, and cross referencing those details with local and state regulations, buyers and sellers may not have the time to focus on the property itself. “Without due diligence, issues can be encountered with even the seemingly simplest of real estate transactions,” said Jennifer Safier, an attorney with Advocates United. “Each real estate transaction is unique. You can’t always compare the data and information of one commercial transaction to another, because the zoning and laws for one property may be quite different from another. This holds true even for properties next door to each other!”
Safier points out that there may not be an exact comparable property to look at when trying to determine a true value of your investment. Factors to look for include similar location, age, size and use. The potential that a commercial property has for future income must also be assessed with its present revenues. Because of the many variables that may influence a property valuation, buyers and sellers can legitimately come to different values based on different
action. For instance, environmental hazards, code violations and rusty machinery may all affect the utility of a building. Local and state law may or may not determine liability for these issues. It is also quite possible that an assumption of liability on one side or the other may change the final price on the property. “It can be difficult to move forward in commercial real estate if you do not know who is
“Without due diligence, issues can be encountered with even the seemingly simplest of real estate transactions.” perspectives. Many times, an experienced third party appraiser who understands the legal aspects of the transaction is vital in coming to an agreement that suits both sides. Aside from assessing property value and dealing with the regulatory framework of a commercial real estate deal, buyers and sellers must also decide who will assume liability for present and potential problems in the trans-
Jennifer Safier ATTORNEY
legally and ethically responsible for any shortcomings the property may have,” Safier said. “You should not accept any liability that is not yours, and do not move forward with any deal until liability for every contingency has been fairly delegated.” Jennifer Safier, who was interviewed for this article, is an attorney at Advocates United. If you would like to contact Advocates United to discuss your specific situation you can do so at 888-208-8105.
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The Legal Advocate – February 2018 | 23
Biting the hand that fed you Filing a Workers’ Compensation claim against your employer After a nasty accident at work, you filed a workers’ compensation claim. Your recovery has been painstaking and difficult, but you are eager to get back to work. However, there is one major problem: You have been fired from your job and you believe it’s because you filed the claim.
However, to access these benefits, you could be pitted against an insurance company with a team of attorneys. In that situation, many people turn to an attorney to help navigate the system. Workers’ compensation lawyers have experience with your state’s employment laws and can help fill out the mounds of paperwork involved in claims correctly and file it on time.
This scenario seems impossible, but it happens, especially in states which have “at will” employment laws.
Employers and their insurers often try to deny your claim because they know most employees will never appeal the decision.
WORKERS’ COMP
“Although you can’t be fired because you’ve filed or pursued a worker’s compensation claim, the workers’ compensation law, generally, does not protect you from being terminated for other reasons,” Vincent Rossillo, an attorney with Advocates United said. “You may qualify for protection under the federal Family Medical Leave Act or individual states’ leave acts, but those laws offer job protection for limited periods.” According to the National Conference of State Legislatures, at will means that an employer can terminate an employee at any time for any reason, except an illegal one, or for no reason without incurring legal liability. An employer can change the terms of the employment relationship with no notice or consequences. Workers often try to shield themselves from losing their jobs by not admitting to being hurt while working and filing a claim. However, if they do reveal an injury to their employer, they should be accommodating. If you’re unable to return to your regular duties, an employer should try to offer a position with less physical demands. According to the Americans with Disability Act (ADA), once an employer has made efforts to try and accommodate an injured worker and they can’t fulfill their duties, they can terminate the employee. The employee may be eligible to receive training for a new position or apply for permanent benefits.
“Although you can’t be fired because you’ve filed or pursued a worker’s compensation claim, the workers’ compensation law, generally, does not protect you from being terminated for other reasons.”
Vincent J. Rossillo ATTORNEY
Another common scenario is that the settlement offered doesn’t come close to meeting the medical and lost wages costs you’ve incurred. In these situations, people can’t leave their future to chance. You need to find the resources to make sure that you are compensated in a fair manner. Vincent Rossillo, who was interviewed for this article, is an attorney at Advocates United. If you would like to contact Advocates United to discuss your specific situation you can do so at 888-208-8105.
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24 | I The Legal Advocate – February 2018
Trending News Financial advisor tricks model into investing in his movie The 2011 face of Prada, model Kinga Rajzak, has filed a lawsuit against her former financial advisor for tricking her into investing $150,000 into the production of his own movie. According to the suit, the famed catwalker invested $150,000 in accountant Nick Schlatmann’s movie, “Tagore: Burnt Offerings.” Schlatmann promised Rajzak a 20 percent return and wrote to her, “I really just want you to trust me.” The movie was supposed to be about a 1913 Nobel Prize-winning Indian author named Rabindranath Tagore, but was never produced. According to the lawsuit, “The ‘investment’ turned out to be a complete flop. Production of the film was not completed.” Once Rajzak’s attorney sent the defendant a letter asking for the money back, he dropped her as a client. Now the Slovakian model is suing both Schlatmann and Manhattan-based business he works for, DDK & Company.
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The Legal Advocate – February 2018 | 25
Vistaprint sent same-sex couple anti-gay mail before wedding A married same-sex Pennsylvania couple is suing Vistaprint, a web-based printing company, for sending them anti-gay and discriminatory pamphlets on the night before their wedding, instead of the custom wedding programs the couple had purchased. Plaintiffs Aussies Stephen Heasley and Andrew Borg ordered 100 blue and gold programs priced at $79.49. But when they opened up the Vistaprint package on the eve of their wedding, “they were horrified to find that Vistaprint had not shipped their customized wedding package. Instead Vistaprint shipped them approximately 80 copies of a discriminatory pamphlet entitled: ‘Understanding Temptation: Fight the good fight of the faith.’” Heasley and Borg have expressed their desire “to hold Vistapacts of hate perpetrated against others.” rint accountable for the harm they have caused … and to send a message An attorney for the couple stated, “This case that there will be consequences for represents a particularly egregious example of a company refusing to provide equal services
to members of the LBGTQ community.” The two men are suing Vistaprint and the unnamed individual responsible for sending the hate mail. They’re seeking unspecified damages.
Women sue after being injured in concert stampede Barclays Center in Brooklyn, N.Y. is facing a lawsuit filed by two women who claim they were injured in a stampede that broke out after a rapper’s concert. Shauntay Harris and Catrina Washington attended Future’s Nobody’s Safe Tour at the Barclays Center. Concert-goers heard what sounded like gun shots going off at the end of the show. One concert-goer tweeted, “Turned around and saw 500 people sprinting from Barclays Center after we were outside. Never ran so fast in my entire life.” Barclays later announced that this noise was simply the stage being broken down. Still, this didn’t stop the two females from being stampeded over, and injured, in the chaos. According to their lawsuit, Barclays Center employed “improperly trained” security and had unsafe and poor lighting. A spokesman declined to comment on the litigation.
26 | I The Legal Advocate – February 2018
Found Money Should your business incorporate and take advantage of federal tax changes?
For years, you have always looked for ways to try to make even more revenue for your upstart small business legally utilizing the tax code.
TAX
It certainly would help the health of your business and your family. For all of the number crunching, you couldn’t find a viable solution. However, because of the recent changes to the federal tax code, business owners may now be able to accomplish that easier. Before you celebrate, you should listen to attorney Michael P. Earner of Advocates United, who has both an MBA and a LLM (Master of Laws) degree in Taxation. “The new tax code may result in a greater income for a business owner; however, it all will depend on the business’ unique situation,” stresses Earner.
tion against profits, but the balance of these profits will be fully taxed to the owner as wage income subject to higher individual income tax rates and employment taxes. By creating a “C” corporation, corporate profits will be taxed at the 21 percent rate and not the potentially higher individual income tax rates, which are increasing to 37 percent. “Tax treatment is just one issue to consider. Switching from one entity to another might be a smart move. I highly recommend that any business owner discuss their business with an attorney before deciding what to do,” Earner said.
“The new tax code may result in a greater income for a business owner; however, it all will depend on the business’ unique situation.”
Michael Earner, who was interviewed for this article, is an attorney at Advocates United. If you would like to contact Advocates United to discuss your specific situation you can do so at 888-208-8105.
Michael Earner ATTORNEY
Many small businesses operate through what are called “pass through” business entities, including sole proprietorships, partnerships, limited liability companies, and S corporations. These types of businesses don’t pay income taxes and their profits are “passed through” and reported by the business owner. According to Washington D.C.’s Brookings Institute, a non-profit public policy organization, about 95 percent of businesses in the U.S. are pass throughs. Studies by the Tax Foundation, an independent tax policy research organization, found the passthrough business sector has expanded over the last three decades. Pass-through businesses now earn more net income than traditional C corporations and employ the majority of the private-sector workforce. Because of the tax changes, small business owners should decide whether to remain as a “passthrough” business or become a C corporation. “C” corporations are subject to the corporate income tax. “S” corporations are not because profits “pass through” to shareholders. The difference between the two entities, even though they are both “corporations” is based on federal tax law, not state corporate laws that the business was formed under. If the small business owner remains as a “pass thru’ business, the owner can get a new 20 percent deduc-
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The Legal Advocate – February 2018 | 27
BANKRUPTCY, FORECLOSURES & MODIFICATIONS
Help on the horizon? Do I Qualify for Chapter 7 Bankruptcy? Losing your job was the first fateful financial hit and now you are swimming in credit card debt. Even worse, you are in the middle of a nasty divorce, which will likely send your finances into a full tailspin. Not only is the debt piling up: So is the stress. You need financial relief and a new start. Some friends have suggested that you file for Chapter 7 bankruptcy protection. The word bankruptcy scares you, but filing might be a way to have some debt immediately discharged if you qualify. “Bankruptcy is a big step and you need to carefully consider your options before filing. Can you cut your expenses? Can you lower payments by consolidating your debt? While you may be able to free yourself from credit card or medical debt, child support and student loans won’t be discharged,” said Scott Goldstein a New York City area attorney with UpRight Law, who represents individuals in bankruptcy proceedings. According to Administrative Office of the U.S. Courts, there were 794, 960 bankruptcy filings in the U.S. in 2016, including 490,365 Chapter 7 filings. As per U.S. Courts guidelines, to qualify for relief under Chapter 7 of the Bankruptcy Code, the debtor may be an individual, a partnership, or a corporation or other business entity. A means test is used to determine if someone’s income is low enough for them to file for Chapter 7 protection from creditors. This screening mechanism prevents people with high incomes from using it. Those who can’t pass the means test might receive bankruptcy protection
under a Chapter 13 filing. According to the U.S. Courts, a Chapter 7 bankruptcy case does not involve the filing of a plan of repayment as in Chapter 13. The means test compares your income with others in your state. If a person’s monthly income is less than the median income for a household of your size in your state, they can file a Chapter 7 bankruptcy. Passing the means test doesn’t mean you’re guaranteed protection from creditors. The bankruptcy court also needs to review detailed information about your income and expenses. After deducting your actual monthly expenses from your current monthly income, you have money remaining to pay your creditors some amount. If this is the case, the court might convert your Chapter 7 filing to that of a Chapter 13 bankruptcy. “Chapter 7 isn’t for everyone,” Goldstein says, “But it may be your best option, depending on your situation. It can provide financial relief and a fresh start.” Scott Goldstein, who was interviewed for this article, is an attorney at UpRight Law. If you would like to contact UpRight Law for a free consultation to discuss your specific situation you can do so at 855-466-3961.
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“Chapter 7 isn’t for everyone. But it may be your best option, depending on your situation. It can provide financial relief and a fresh start.”
Scott Goldstein ATTORNEY
28 | I The Legal Advocate – February 2018
Is ‘Innocent Until Proven Guilty’ going extinct in a #MeToo landscape?
T
he young woman, a twenty-something who was struggling to find herself, needed a job and guidance.
Not only did you give her a much needed shot, you treated her like your own daughter. So you are shocked when she brings sexual harassment CRIMINAL charges against you. You know you are innocent — her claims are false — but you fear that there will be a rush to judgment against you in today’s #MeToo world. “We are reminded every day that accusations are very powerful, especially those of a sexual nature,” said Vince Imhoff, an attorney with Imhoff & Associates. “From an accusation alone you can lose so much, and even face serious criminal charges.” Many sexual offenses that are criminal in nature carry lengthy mandatory minimum prison sentences. In recent months, there have been dozens of sexual harassment allegations against #MeToo celebrities, including many who have admitted guilt and offered apologies. The MeToo hashtag has spread virally on social media since October of 2017 when Harvey Weinstein was accused of sexual misconduct by several high-profile actresses. Since then, a long line of celebrity
“It’s important to remember that there is a difference between the court of public opinion and the courts of criminal justice...there is a reason the legal system requires proof beyond a reasonable doubt.”
These accusations should not be taken lightly. According to the Rape, Abuse and Incest National Network (R.A.I.N.N.), the nation’s largest anti-sexual violence organization, an American is sexually assaulted every 98 seconds. However, false accusations can and do happen, with studies showing that the prevalence of false allegations could be as much as 10 percent. If an accusation is serious enough, even if you are innocent, you could lose your job, family and/ or freedom. An attorney can not only defend you against bogus charges, but challenge your misguided accuser. “It’s important to remember that there is a difference between the court of public opinion and the courts of criminal justice,” Imhoff said. “While we all want true victims to find their voices, there is a reason the legal system requires proof beyond a reasonable doubt. The goal of accused persons and their attorneys is to hold the government to that standard.”
Vince Imhoff ATTORNEY
chefs, athletes, comedians, actors and journalists, among others, have been accused of sexual assault.
Vince Imhoff, who was interviewed for this article, is a criminal defense attorney and managing director with Imhoff & Associates, PC. If you would like to contact Imhoff & Associates for a free consultation to discuss your specific situation, you can do so at 888-445-6219.
Would you like more information? Visit us at TheLegalAdvocate.com The content of this page is covered by and subject to the Legal Disclaimer found on Page 3 of this edition.
The Legal Advocate – February 2018 | 29
Crossword
by Myles Melor
Class Action
41 Check the financial records of 42 Not difficult
Down
Across
1 It’s what outlines why a case has been brought and who the parties are 7 Order from the judge not to dis cuss an issue publicly 9 Put on clothes 10 Allege a company or individual committed an offense 12 Quote a legal precedent or law 13 Cancel out 15 Reach an agreement in a case which ends litigation 18 _____ in, took the money
21 Sound from Santa 22 Have to have 24 Dined 25 Court employee 26 Class action suits are ___ suits, not criminal 28 Pacino or Capone 29 Signs, as an agreement 32 Completion of a legal agreement 33 Amount of profit 35 Actress who famously played in “A Few Good Men” - first name 37 Was paid out by the bank, as a check
1 Type of lawsuit where an attorney represents a group of people who were all injured by a product or action of the defendant, 2 words 2 Apple computer 3 Vinyl records 4 Driver’s license for example 5 Explanation to the class members of what the lawsuit is about 6 Nashville’s state, for short 7 Famous novelist who wrote “The King of Torts” about a class action lawsuit 8 Thousand dollars in slang 11 Get ___, take revenge 14 Family man 16 Not just any 17 Wrongs, legally 19 Alien who was too good for earth 20 Just said no to 23 Facts presented in relation to a case 27 Accustoms (to) 30 Falsified, as a check 31 Level 32 Change the wording, for example 34 College e-mail address ending 36 Detroit’s state, for short 38 West coast city 39 Distress cry 40 Former wife Stumped? Find our crossword solution on the next page. Our puzze is also available online at TheLegalAdvocate.com
30 | I The Legal Advocate – February 2018
This month in legal history February 4, 1789
February 4, 1881
When the Electoral College convened, the ten states eligible to vote unanimously elected George Washington as president.
Plea-bargaining became the acceptable practice of agreeing to a guilty charge in exchange for a lesser sentence.
February 1, 1838
Congress passes The Immigration Act of 1917, which overrode a veto by President Woodrow Wilson. He opposed the bill because of the required literacy test and the tremendous restriction on immigration from the Asia-Pacific zone.
February 4, 1917
The Underground Railroad was established, consisting of a network of secret passageways and safe houses. Abolitionists and those sympathetic to the plight of enslaved people set up the system to aide those trying to escape to freedom in northern states and Canada.
February 4, 1933 The 20th amendment to the Constitution was ratified; it redefined the dates that elected officials held office. Previously, their terms began in March the dates were changed to January to shorten the “Lame Duck” period.
February 4, 1862 The federal government passed the Legal Tender Act to finance the Civil War with paper currency, not gold or silver.
Legal Ease
by Marty Bucella
See More Online
TheLegalAdvocate.com Crossword Solution:
The Legal Advocate – February 2018 | 31
Oddball Law
by Alyssa Stalzer
This law has Michiganders feeling a little blue If your Sunday shopping leads you to a car dealership in the Motor City, you’ll have to wait an extra day before you make a purchase. That’s because of a 1953 law enacted in Michigan, which prohibits new and used cars sales on the Sabbath, something referred to as Blue Laws. What might be more unusual than the law itself, are the exceptions. The statute dictates that Sunday auto sales are prohibited in any county with a population greater than 130,000, so in reality, nearly 80 percent of Michigan’s 83 counties are actually exempt from the rule.
New pet ’gator for 10 years in jail? The choice is yours, Louisianans I know alligator theft can seem like an alluring career choice, but try to refrain from becoming the new Steve Irwin in Louisiana unless you want to spend the next decade of your life behind bars! If you do wake up and decide to steal an alligator, or pieces of said alligator (gross) that amount to a value more than $500, you can be imprisoned for up to 10 years and fined up to $3,000.
32 I The Legal Advocate – February 2018 The| Legal Advocate
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