Archive for Litigation

March 14, 2017   Posted by: Margarita Smirnova

YOU ARE ON YOUR OWN!

     Second Amendment of the U.S. Constitution states: “A well regulated Militia, being necessary to the security of a free state, the right of the  people to keep and bear  Arms, shall not be infringed. U.S. Const. amend II.”

Supreme Court ruled that the Second Amendment guarantees the individual right to posses a firearm in the home for the purpose of self defense. See District of Columbia v. Heller, 554 U.S. 570 (2008).  And the Fourteenth Amendment provides: “No State shall … deprive any person of life, liberty, or property, without due process of law”. U.S. Const. amend IV.   The court held that the the Second Amendment “is fully applicable against the States.” McDonald v. Chicago, 561 U.S. 742 (2010).

Massachusetts is famous for being one of the most toughest states in regulating firearms. Just by looking at the M.L. Section 131: Licenses to carry firearms; conditions and restrictions says a lot.  The law begins not with rights; it sets out restrictions.  In other words, M.G.L. c. 140 §131 authorizes a licensing authority to place restrictions on the license, preventing the licensee from lawfully carrying a handgun on his person outside of his home.  Residents of Massachusetts must obtain a license to both purchase and possess firearms, ammunition, and feeding devices. M.G.L. c. 140, §§ 129C, 131, 131E, c269 § 10.  Under M.G.L. c. 140, § 129B., a Firearms Identification Card is a “shall-issue” license, if an applicant meets statutory requirements.

Local Police Chiefs/Commissioners administer firearms licensing for any person residing or having a place of business within the jurisdiction of the licensing authority. M.G.L. c. 140, §§ 121, 129B, and 131.  Most of the time, the judge sides with the police deeming a petitioner who has had small indiscretions with the law in his or her teens and now a business owner and/or has a family, too dangerous to ever exercise their right to protect themselves and their loved ones.
Politics and money create a legal system reflecting the society.  Question comes to mind is how the right became a restricted permit?  In simple terms, some people are so scared of guns and gun violence that they would rather have no protection for themselves and others thinking they will be insulated by circumstances others aren’t as fortunate.

The police aren’t at our beck and call nor should they be.  Many folks working in law enforcement put their lives on a line to protect us and do their best.  They do reserve the right to protect themselves first and exercise their discretion whether the call is a true emergency.  Police also can be very busy and cannot arrive fast enough.  In 2005, U.S. Supreme Court ruled that Police doesn’t have a constitutional duty to protect.  See Castle Rock v. Gonzales, 545 U.S. 748 (2005), is a United States Supreme Court case in which the Court ruled, 7–2 (Alito and Ginsberg dissented), that a town and its police department could not be sued under 42 U.S.C. §1983 for failing to enforce a restraining order, which had led to the murder of a woman’s three children that the estranged husband kidnapped earlier during the day and the police used their discretion and ignored a judge who ordered restraining order.

Without going into analysis as to how and why the children were kidnapped with an active restraining order that police chose to ignore and argument that restraining orders are given out too easily, the judge ordered it, the order was in place and the system failed Mrs. Gonzales who did everything right to protect herself and her children.  This means that while a criminal element doesn’t care to obtain firearms legally, you are on your own!

By Margarita Smirnova
Call: (617)398-7482
E-mail: margarita.smirnova@gmail.com
This post is for informational and educational use only and does not create attorney-client relationship.

March 30, 2016   Posted by: Margarita Smirnova

STARTING A BUSINESS

So, you decided to start a business? Congratulations! You should have an idea that your new business has to be incorporated. There are multiple choices such as sole proprietorship, LLC, LLP, INC, and PA and taxation/liability issues that you need to tackle.

Purchasing: Perhaps, you should just buy one? Wouldn’t that create a slew of problems with previous owner(s), shares, bylaws and operating agreements? Large lump sum of money gets involved and situations get convoluted.
Benefits and risks: Pros and cons of working for self are incredible. No one can fire you! No one can tell you when, what and how you should do things unless you have partners or shareholders. It sounds great on the paper. That’s right! Put everything on the paper is very important. Starting from incorporation paperwork to operating agreements, paying attention to by-laws and employment contracts. Don’t forget to review financial statements; what company owns, its capital and debt.

Employment: Most likely, you will have someone assist you and do what you could do. If you decide to hire someone, employment laws play an important role. If you get someone who will do some work for you that you do, s/he is an employee. If you don’t pay promptly, you may be subject to criminal charges besides triple damages and your company facing a costly lawsuit. Is your head spinning yet?

Liability insurance: Incorporated business has certain protections by the state but these protections are far from enough to cover from potential litigation related to your business with specific needs.
Location: Most towns have their local rules and regulations to consider prior opening your business that need to be taken in consideration. Most likely, you will need an office. The next question is will you rent vs. own the property where your business is based. This is when you need to consider real estate issues.
Interstate: Will your business be a part of the Interstate Commerce? Will you have to deal with internet issues and contracts pertaining to your product and services? How about regulations of those states your business reaches?

If you have any questions, contact me and we will explore how your business can achieve its objectives.

By Margarita Smirnova
Call: (617)398-7482
E-mail: margarita.smirnova@gmail.com
This post is for informational and educational use only and does not create attorney-client relationship.

no comments posted in: Business Law   |   Commercial Law   |   Litigation
October 16, 2014   Posted by: Margarita Smirnova

Firearm Laws and Complications From Possessing Firearms!

In October, 2013, when Shaneen Allen was charged for possessing a firearm in her car in New Jersey the arrest came as a surprising shock.  According to the Philly.com report, a single mom of two, who resides in Philadelphia, obtained a license-to-carry permit and lawfully purchased .380 Bersa Thunder handgun for self defense purposes.   The last thing she expected was that during a routine traffic stop in New Jersey she would get arrested and was charged with unlawful possession of a weapon and possession of hollow-point bullets.  For many who were unaware of how firearm laws work it was mind boggling.   Ms. Allen had all the documentation and proper preparation to be able to carry her Bersa.  So, what went wrong? The answer is different states have different rules and reciprocity is far from automatic.

The Second Amendment to the U.S. Constitution guarantees to each citizen the right to bear arms.  Yet, many state legislations across the country enacted many controversial restrictions and limitations no other amendment could ever endure.  Each state requires its own license; whether it is to collect fees or to control the amount of firearms.

For better or worse, the firearm law is constantly changing.   It is important to know your rights because the punishment for these offenses is quite severe, and traditionally, the prosecution addresses the violators who possess firearms with vigor.

In 2013, New York enacted a Safe Act that claims to “keep communities safe while respecting hunters and sportsmen.” Governor Guomo, if reelected, plans to sign a Safe Act 2 which makes one wonder whether the first act didn’t keep the public safe.   Under the New York law, criminal possession of a weapon is fourth degree and is a strict liability and per se crime in the New York Penal Law pursuant to NY PL 265.01.  The implication of strict liability for simply possessing a firearm or even a knife is automatic prison time.

Recently, Massachusetts reinstated itself as one of the leaders in tough gun control in the nation.  On August 13, 2014, the Massachusetts legislation signed into law an Act Relative to the Reduction of Gun Violence.  The Act allows police chiefs to ask courts to deny firearms identification cards to individuals if they feel are unfit to obtain them.  The Act made gun-based crimes tougher and created an online portal for background checks in private gun sales, making Massachusetts join the National Instant Background Check System.

An improperly possessed or used firearm is dangerous not only for possessing the firearm which is regulated by the Mass. Gen. Laws Ch. 269 Sec. 10 (h) and having to surrender it under the Mass Gen. Laws Ch. 140 Sec. 129D but also risky to your freedom.  The Mass Gen Laws 140 Sec. 128B states that for the first offense the violator will be punished by a fine of up to $1,000 and for any subsequent offense by imprisonment in the state prison for up to ten years.

Different towns and cities require different policies and procedures to obtain License to Carry of Firearm Identification.  Possession, storage and transportation of firearms are heavily regulated.  It’s important to obtain a proper license prior to purchasing any firearms.  No doubt, the Act Relative to the Reduction of Gun Violence makes owning firearms more complicated and since certain regulations will become active in January 2015, applicants will be prone to make mistakes in filing or renewing their licenses to carry or firearm identifications cards applications, or worse, due to new regulations, losing their rights altogether.

It is important to note that under the Massachusetts law a possession of a firearm while committing a felony will will result in a mandatory minimum sentence of 5 years.  Failing to proper obtain a license to posses a firearm can automatically render a perfectly law abiding citizen a felon.

By Margarita Smirnova
Call: (617)398-7482
E-mail: margarita.smirnova@gmail.com
This post is for informational and educational use only and does not create attorney-client relationship.
June 9, 2014   Posted by: Margarita Smirnova

BUSINESSES DEALING WITH ON LINE DEAL SITES!

At one point, sooner or later, you, as a business owner or business principal will consider offering your services on a Groupon like or an on line deal sites to promote your business and show potential customers your service.   Forbes’ article Are Daily Deal Sites Like Groupon Still Worth It? points out the wariness of the consumer.  In the article, a writer didn’t use her coupon.  She stated that customers became disillusioned by the deals and burnt from experiences.  She ended her article with a list of great advice for the buyers.  The list is great to connect with customers and figure how to make your business last.  The list below will take it a little further and list issues that businesses may deal with when working with companies that providing on line deals.  Keep in mind that the list is not exhaustive and not all companies are the same.

1.     Deals are contractual agreements.  When dealing with a corporation that offers an on line deal you will be provided with an already prepared contractual agreement that contains multiple clauses.  One of the most commonly used clauses is expiration date.  Each contract varies.  In 2012, Groupon, Inc. paid $ 8.5 million and settled a class-action lawsuit, which alleged illegal expiration dates when customers didn’t use their vouchers.  See, In re Groupon Inc. Marketing and Sales Practices Litigation, 11-MD-2238, U.S. District Court, Southern District of California. The result affected businesses that now must accept monies customers paid even after the deal, sans the discount.

When facing with on line deal like contract, this is the time to review every clause very carefully.  It is important to understand the company’s motive, which is to sell.  This means what is said is not always what is in writing.  One Boston magazine offered an on line deal to a business where the salesperson verbally offered a deal-type scenario that consisted the company would provide the deal on their website and keep 100% of proceeds from the deal while the business would provide a service to the customers who would buy the deal in exchange for the publication.  When they sent the contract to the business, it was shocking to see that no deal-type scenario was included anywhere in the contract.  In fact, the business would be solely responsible for the publication.

2.     Cancel the contract clause.  Deal-type companies retain the right to cancel the contract with the business at any time without warning or explanation.  That means whatever efforts you made to prepare your business to deal will go to waste.  They also can change a day and a time of the without being liable to you.  The contract can limit the business’s right to cancel which renders the clause illegal when one sided.

3.     Another big one is condition of approval clause.  If the business isn’t careful and signs this clause, the company can get the right to strip you of your right to condition for approval, which I think, is atrocious.  You want to see your final version of advertisement before it goes out in print or on line.

4.     Watch out for your own property rights.  One company wanted to retain rights to own and sell to third parties of businesses’ pictures or images and trademark perpetually.  This means that not only they can use your images that you’ve spent time, money and energy to obtain and belong to you, but also to sell them to whoever they please forever.

5.     Customer dissatisfaction.  All on line deal like companies contain limitation clauses in their contracts.   They also will make sure to be indemnified from further liability and the responsibility will fall almost entirely on the business.  It is important to be aware what type of liability the business will absorb.

Groupon like companies retained attorneys to draft contracts for them.  There is nothing wrong if you get help from one.

Written by Margarita Smirnova, Esq.

If you have a specific question relating to your business or any other legal questions, please contact Margarita

Call: (617)398-7482
E-mail: margarita.smirnova@gmail.com
This post is for informational and educational use only and does not create attorney-client relationship.
no comments posted in: Business Law   |   Commercial Law   |   Litigation
December 5, 2013   Posted by: Margarita Smirnova

MY NEW YORK BAR EXAM STORY

Around this time of the year, a certain number of people disappears from social circles for about two to three months.  I’ve been there when I sat for the 2008 New York Bar exam.  Studying and sitting for the bar exam is a challenging and stressful process.  It can be sad or it can be satiric.  I choose the later, and in honor of the upcoming bar examination study period, I decided to share my experience and this is my story.

I studied, and oh boy, did I study.  Needless to say, I was exhausted from 3 years of law school.  The week before my law school graduation I started the Bar Bri course.  Usually, the process of studying for the bar begins way before the graduation date.

In February, I took PMBR multiple choice course.  I lost my precious 3 weekends of catching up on sleep and homework in addition to writing papers and job applications.  After playing the catch up, the mid-term time approached.  Time was of an essence and graduation approached.  Here I am, walking the graduation walk with my 2008 classmate and my friend decided to propose to his girlfriend that morning.  Hey, wasn’t it supposed to be my day?  Still, I was very happy for them!

Studying was a blur of 15 hour days following with little sleep.  Since my first language is Russian, I studied extra hard.  The ginormous Vermont ants seemed to really like me being still for hours while I took my timed questions and essays (my close friends know how much I hate insects near me but that’s another story).  Then, my landlord of 3 years seemed to lose all the love for me since the moment I notified that I was staying in my apartment during the summer (yes, I paid for it if you ask).  The “new” and early a.m. construction and lawnmower making noises while parked under my window became part of the norm.  The icing of the cake was my landlord threatened to throw my personal belongings out of the apartment as soon as I leave and trying to keep my security deposit in the end.  (The magistrate agreed with me and ordered to give it but to me later but that’s another story).  On a positive note, the highlights of my bar exam study were two horse-back riding lessons and a movie trip with my bar class.

The day before the bar exam I checked in the hotel.  Why, just why, did one of the bar exam takers needed to sit in the lobby and study?  I guess he didn’t get the memo not to study the day before the bar exam.

On the day of the bar exam, I arrived and was greeted with a few thousands of super-stressed humans like me.  I got to my assigned seat 20 minutes before the show was going to begin.  I was just about to get happy because few of my classmates and study mates were sitting near me.  I guess at that point I didn’t need much.  And as I settled, the drama began.

A woman sitting to my right asked me to switch seats because she was left handed and ‘needed’ my seat.  She conveniently forgot to consider that the exam was administered on laptops.  In fact, the entire room we were in was assigned for laptops.  I told her I did not want to be moved.  I offered her to move in the back of the room where nobody sat and mentioned that she should have taken care of it prior the day of the examination.  Surprisingly, she wasn’t too happy with my response.  You would think it would be the end of story.

Five minutes before the exam starts I left the stress room to take a breather.  Upon my return and to my shock, the proctor was switching the numbers of our seats.  My sweet neighbor had already put her sweater on my chair and had my stuff moved on her seat.  I sternly told to the proctor that I did not agree with the switch and she quickly moved the numbers back.  Way to go to start your legal profession with the lie dear bar exam taker.  Later I found out, proctors were not even allowed to make switches.

The whole day of the examination, my bar exam neighbor would shake the table on purpose, puff, sight and move a lot.  On the second day of the examination, she apparently made a mistake filling up bubbles in her answer sheet someplace in the beginning and filled out the rest in wrong order.  She had to erase everything around 45 minutes before the end of the test.  She violently shook the table for 15 minutes forcing me to lift and tilt my exam question sheet and answer sheet.  This is the moment I knew that if there was an earthquake, nothing would prevent me from passing the New York Bar exam!

 

Written by Margarita Smirnova, Esq.

If you have a specific question relating to your business or any other legal questions, please contact Margarita

Call: (617)398-7482

E-mail: margarita.smirnova@gmail.com

no comments posted in: Business Law   |   Litigation
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