Thursday, February 7, 2013

"PATH" MUST CHANGE ITS PATH: FTC Update By Attorney Charles Jerome Ware

www.CharlesJeromeWare.com

On February 1st, 2013, Path Inc. ("Path") agreed to pay an $800,000 civil penalty to settle charges brought by the U.S. Federal Trade Commission ("FTC") that Path unlawfully collected personal information from children without parental consent.

Approximately 3,000 of these children were under the age of 13.

Path also has settled FTC civil charges that it collected personal information from users' mobile address books without their knowledge and consent.  The settlement requires that Path establish a comprehensive privacy program and that it obtain independent privacy assessments every other year for 20 years.

www.CharlesJeromeWare.com

Attorney Charles Jerome Ware formerly served as Special Legal and Microeconomist Counsel to the Chairman of the Federal Trade Commission.  Prior to that he held the position of Senior Assistant to the Director of the FTC's Bureau of Competition in Washington, D.C.

[see, www.ftc.gov/opa/2013-02/path.shtm; www.jdsupra.com/legalnews/ "Path/FTC Settlement-Much More Than A Slap On The Wrist"; www.pcworld.com/article/02-03-2013/ "FTC Fines Maker of Path App $800,000 for privacy violations"; www.latimes.com/business/technology/02-01-2013/ "Mobile Social Networking App Path Settles With FTC for $800,000"; www.techcrunch.com/02-01-2013/ "Path Settles With FTC Over Privacy Row, Will Pay $800,000 And Establish New Privacy Program Including Outside Audits"]

CHARLES WARE: BALTIMORE, MARYLAND'S PREMIER LEAD PAINT DEFENSE ATTORNEY

Attorney Charles Jerome Ware is renowned and consistently ranked among the best attorneys and legal counsellors in the United States. [GQ Magazine, The Washington Post, The Baltimore Sun, The Columbia Flier, USA TODAY, The Howard County Sun, The Anniston Star, The New York Times, et al.]
www.CharlesJeromeWare.com

The national law firm of Charles Jerome Ware, P.A., Attorneys and Counsellors is: "Still working. Still committed. Still here to make a difference."

Maryland Lead Law
Maryland Environmental Article 6-8 - "The Lead Poisoning Prevention Program" Statute

Maryland Environmental Article 6-8, also referred to as Maryland Housing Bill 760, "The Lead Poisoning Prevention Program" statute, was signed into law in May 1994 and became fully effective on February 24, 1996.

The law is intended to make all privately owned pre-1950 rental housing units safer for children, while also helping rental property owners and managers to avoid costly lead poisoning litigation by complying with specific lead hazard reduction measures or a dust testing procedure set forth in the statute. This statutory provision applies to all such housing units and, at an owner's option, to rental units built after 1949.

In essence, the law sharply limits the rights of children and their representatives to traditional tort damages for lead poisoning, provided that: (1) the property owner has satisfied certain housing unit registration requirements; and (2) the unit has either passed lead dust tests or undergone a set of "risk reduction measures" which must be verified by an independent, certified third party who performs a visual inspection When the unit meets this standard, the owner is entitled to a limited tort immunity.

However, if a child living in the unit develops an elevated blood lead level which exceeds 20 micrograms of lead per deciliter of blood, the owner has the option of making a "qualified offer" to the child and his or her legal representative.

A qualified offer is, in effect, a settlement of that child's potential lead poisoning claim and provides remedial compensation.

Under the provisions established in House Bill 760 for the qualified offer, the owner and his or her insurance company would: (1) offer to relocate the child's family to a housing unit that has been certified as "lead-safe," including payment of a rent differential if the "lead-safe" unit rents at a higher monthly rate; and (2) pay for any necessary medical treatment to mitigate the effects of lead poisoning when the treatment is not covered by a health insurance plan or public medical assistance.

Relocation expenses are payable until the poisoned child reaches age six, subject to a $9,500 cap. Out-of-pocket medical expenses are payable until the poisoned child reaches the age of 18, subject to a $7,500 cap.

Since a major reason for enacting House Bill 760 was the widespread and routine application of lead liability exclusions in general liability policies covering rental housing units, the statute adds provisions to the Maryland Insurance Code which limit the circumstances under which these exclusions would be effective. Therefore, access to insurance and limited liability are the primary incentives or benefits to owners of pre-1950 units who meet the statutory risk reduction standards. Additionally, the systematic reduction of lead-based paint hazards in these older units is meant to be the primary means for preventing lead poisoning in the state.

In summary, Maryland House Bill 760 takes on some of the most difficult public health, housing and liability issues posed by childhood lead poisoning to provide a measure of safety for children and a relief from the threat of litigation for rental property owners.
Jackson, et al. v. The Dackman Company, et al.
No. 131, September Term 2008 (Md. Oct. 24, 2011)
On October 24, 2011, the Maryland Court of Appeals in Jackson v. Dackman, struck down as invalid a statutory provision in Maryland’s Reduction of Lead Risk in Housing Act (“Act”) that provided immunity from liability to landlords if: (1) they achieved full compliance with certain requirements under the Act including registration and timely renewal of rental properties constructed prior to 1950; compliance with applicable risk reduction and response standards; and compliance with notice requirements to tenants; and (2) they had opportunity to make a qualified offer of up to $17,000 for reasonable relocation and medical expenses.

In light of the Dackman decision, landlords have found themselves facing a great deal of uncertainty and many are concerned that they may now be potentially exposed to huge liability claims, even if they previously had been fully compliant with the Act’s provisions.

Charles Jerome Ware, P.A., Attorneys and Counsellors can provide winning defense representation for:
  1. Defense of Lead Paint Cases
  2. Asset Protection

    and can assist lead paint insurance carriers and claims representatives with:
  3. Defense of Lead Paint Cases
  4. Presentations on Maryland’s Evolving Lead Paint Laws

Comparing State and Federal Laws

Federal and state laws address lead poisoning issues in slightly different ways. A shared feature is that each law requires that specific information be given to current and new tenants. Both Federal and Maryland law require landlords to give to each tenant the pamphlet “Protect Your Family from Lead in Your Home”. Maryland law also requires distribution by landlords of an additional pamphlet entitled “Lead Poisoning Prevention - Notice of Tenants’ Rights”.

For detailed information about the federal law and how to obtain copies of the federally mandated pamphlet, call the National Lead Clearinghouse at 1-800-424-LEAD (5323) or the Coalition to End Childhood Lead Poisoning at 410-534-6447.

Additionally, for detailed information about the Maryland law and how to obtain copies of the state-mandated “Notice of Tenants’ Rights” call the Maryland Lead Poisoning Hotline at 1-800-776-2706, or TDD (410) 631-3009, or the Coalition to End Childhood Lead Poisoning at 800-370-LEAD.

Maryland Lead Poisoning Prevention Program

In 1994 the General Assembly established the Lead Poisoning Prevention Program for the purpose of reducing the incidence of childhood lead poisoning while maintaining the stock of affordable rental housing. This program requires owners of older residential rental properties to meet certain risk reduction standards. It also provides more affordable insurance and the protection of limited liability for owners who comply. It is administered by the Maryland Department of the Environment (MDE). For more information call the Lead Poisoning Hotline at 1-800-776-2706, or TDD (410) 631-3009. Read the Law: MD Code, Environment § 6-801- 6-852; Article 48A, Secs. 734-737; Real Prop. § 8-208.2

Following is a summary of the law:

The owners of all rental dwelling units built before 1950 must comply with this law. Owners of units built between 1950 and 1978 may choose to comply and thus benefit from limited liability.

The law exempts rental units owned or operated by federal, state, or local government or by a public, quasi-public, or municipal corporation, provided the property is subject to standards that are at least as strict as the standards established by this law.

[www.nchh.org/Policy/MarylandLeadLaw; www.pklaw.com/lead paint defense; www.peoples-law.org/Lead Paint in Maryland; articles.baltimoresun.com/2010-12-02/health/bs-md-rockind-appeal; www.mde.state.md.us/programs/ Lead Poisoning Prevention/Pages/Programs/Land Program/Lead Coordination/index.aspx]

Wednesday, February 6, 2013

QUOTES OF THE DAY BY ARCHITECT FRANK LLOYD WRIGHT: www.CharlesJeromeWare.com

"The Truth is more important than the Facts."

"There is nothing more uncommon than common sense."

--- Frank Lloyd Wright, American Architect.

Tuesday, February 5, 2013

"FIRE ME" --- OK. YOU'RE FIRED: Employment Law Update by Charles Jerome Ware, P.A., Attorneys and Counsellors

www.CharlesJeromeWare.com

When Can Workers Be Fired For Facebook Posts And Tweets?

Amy McClenathan apparently was having a bad day when she posted on Facebook, around the one-year anniversary of her mom's death, that some days she wished she would be fired so she could just stay at home.

The next day she got her wish; the title company for which she worked fired her.  Unfortunately.

McClenathan is hardly alone and, especially concerning government and union workers, who may have greater protections against employer infringement on their personal social media use, whether such firings are appropriate is being addressed in administrative hearings and even in court.

The National Labor Relations Board (NLRB) has issued rulings on a number of social media policies in recent months, providing guidance that may be helpful to other employers who are not directly subject to its purview. (However, their authority was cast in doubt by a federal appeals court decision that three appointments to the five-member board were invalid.)

One potential pitfall for companies is worker criticism of employers on social media posts. Former Arizona Daily Star reporter Brian Pedersen, as the KTVK article notes, lost his job with the newspaper in 2010, after working there over a decade, because he posted some sarcastic Tweets about a Tucson homicide wave. Among them: “You stay homicidal, Tucson. See Star Net for the bloody deets.”

The NLRB said the newspaper was within its rights to do so. However, the NLRB often views critical postings as equivalent to worker venting around the water cooler, which union workers have a right to do.

An October article published by the New York Law Journal discusses and links to general counsel legal memos discussing employer restrictions on social media use.

Related ABA Journal articles:

ABAJournal.com: "Car Salesman Loses NLRB Case Against Dealership That Fired Him over Facebook Post"
ABAJournal.com: "Union Asks NLRB to Determine If Grocery Chain’s Policy on Social Media Use Violates Workers’ Rights"
Forbes (contributor blog post): "NLRB Slams Costco On Social Media Use Policy: What It Means For Your Business"

Renowned and respected for his extensive trial experiences and legal counselling of thousands of individual and organizational clients, Attorney Charles Ware is also noted for being a prolific author of several best-selling books, numerous information blogs, and hundreds of articles.

Ware is a widely acclaimed expert legal commentator who, for eight years in the 1990s hosted the extremely popular legal advice radio program "The Lawyer's Mailbox": the Number One (#1) legal advice radio program in the Mid-Atlantic States, on WEAA-88.9 FM, Morgan State University Radio in Baltimore, Maryland.

Among attorney and author Charles Jerome Ware's best-selling books are:

(1) The Secret Science of Winning Lotteries, Sweepstakes and Contests;
http://amzn.com/1432793888
(2) Understanding the Law: A Primer;
http://amzn.com/1440111456
(3) The Immigration Paradox: 15 Tips for Winning Immigration Cases;
http://amzn.com/1440171920
(4) Legal Consumer Tips and Secrets: Avoiding Debtors' Prison in the United States; and
http://amzn.com/1462051847
(5) Quince (15) Consejos Para Ganar Casos Del Inmigracion.
http://amzn.com/1462068952

Ware's blogs and twitter include, inter alia:

 
[www.bloomberg.com/news/01-29-2013/ "Workers Griping By Facebook May Lose Jobs After Ruling"; www.abajournal.com/news/article/ "Worker Says On Facebook She Wants To Be Fired"; www.azfamily.com/news/ "Tempted To Vent About Work Online? You Could Get Fired"; www.nytimes.com/2013-01-22/The New York Times/ "Even If It Enrages Your Boss, Social Net Speech Is Protected"; www.newyorklawjournal.com/PubArticleNY/ "NLRB Memos Offer Cautionary Guidance On Social Media"/ October 22, 2013; www.tucsonweekly.com/Tuesday, January 22, 2013/ "Tucson Weekly Contributor Brian Pedersen..."]

MACARTHUR FOUNDATION CLIENT Update --- Charles Jerome Ware, Attorney

www.CharlesJeromeWare.com
www.macfound.org

$100,000 in Prizes for Fresh Ideas on Democracy

A new competition offers $100,000 in prizes for creative and provocative digital media pieces that offer new ideas and fresh perspectives to help improve American democracy. The competition – Looking@Democracy – aims to spark a national conversation about why government is important to our lives and how individuals and communities can come together to strengthen American democracy.

“Given our perception that the political system has failed to adequately address major issues confronting the nation, MacArthur seeks to stimulate discussion about the future of the Republic and invests in promising ideas to help enhance democratic ideals, institutions, and practices,” said MacArthur President Robert Gallucci. “This new public competition is all about engaging citizens and encouraging them to apply their creative talents and offer their ideas to strengthen American democracy.”

By welcoming submissions in any digital format (e.g., videos, apps, data visualizations, podcasts, graphic art), the competition hopes to engage independent media makers, investigative reporters, students, graphic designers, and artists – anyone with creative ideas to help engage Americans and shift the political discussion in a fresh and engaging way. Examples of successful approaches could include addressing a critical topic that is absent from the national debate, looking at data and exploring the stories behind them, or highlighting an aspect about democracy taking place on a local level.

Looking@Democracy is a project of the Illinois Humanities Council and funded by MacArthur. Submissions are due by April 30 and will be reviewed by a panel of expert judges from media and the nonprofit community.

Charles Jerome Ware, P.A., Attorneys and Counsellors, is a national general practice law firm dedicated to achieving positive, innovative and successful results. The firm's motto is: "Still working. Still committed. Still here to make a difference."

SONIA SOTOMAYOR: "The line that gives us true equality, and the freedom to make the choice and not be judged negatively for either choice, is my definition of equality."

www.CharlesJeromeWare.com

Sonia Sotomayor is an associate justice of the United States Supreme Court.  Justice Sotomayor is currently promoting her autobiography, "My Beloved World", which recently debuted at Number 1 on the New York Times hardcover nonfiction best-seller list.

[www.abajournal.com/news/article/"Sotomayor Notes One "Over the Edge' Criticism From A Fellow Justice, But There's No Hard Feelings"]

IRS RARE LOSS --- TAX PREPARERS WIN: Client Alert by Charles Jerome Ware, P.A., Attorneys and Counsellors

www.CharlesJeromeWare.com

Charles Jerome Ware, P.A., Attorneys and Counsellors, is a national general practice law firm dedicated to achieving positive, innovative and creative client results.

"Federal Judge rules against IRS again in tax preparer suit"
________________________________________________

(Federal Judge rejects IRS request to allow new regulations on tax preparers to take effect)

A federal judge has rejected a request from the IRS to allow new regulations on hundreds of thousands of tax preparers to take effect while the issue is decided on appeal.

Washington, D.C. U.S. District Judge James Boasberg ruled last month that the IRS exceeded its authority by imposing a series of new regulations on tax preparers. The rules would require tax preparers who are not attorneys or certified public accountants to pass a competency exam and take annual continuing-education courses.

The IRS says the rules are needed to address a growing problem of poorly filed returns. Three independent tax preparers sued to block the regulations, saying they were onerous and put them at a competitive disadvantage.

On Friday, 2/1/2013, Boasberg rejected an IRS request to delay his ruling pending a likely appeal by the IRS.

[Thanks to Chadrenna S. Edmonds, Tax Preparer in Maryland and D.C.; and Associated Press (AP), Friday, February 1, 2013/ "Judge Rules Against IRS Again In Tax Preparer Suit"; news.yahoo.com/"Judge Rules..."]