Stoughton / Canton Area Personal Injury Lawyer - Miscellaneous

Protect Your Personal Data!!

Bruce Bierhans — Wed, 02 Dec 2009 14:21:58 GMT

We all know that identity theft can be an enormous problem for a victim, and the risk of such theft is enhanced by our use of computers. Our own Supreme Judicial Court has recognized the gravity of the problem, and effective September 1, the court adopted a policy known as "Interim Guidelines for the Protection of Personal Identifying Data in Publicly Accessible Court Documents".

An SJC press release states that the guidelines "were developed to begin to protect personal information in public documents....". Unless an exemption applies, court filings may no longer contain the complete number of any of the following information: social security number, taxpayer id number, credit card number, financial account number, drivers license number, state issued id card, passport number, or maiden name of a person's mother. Any filings may only contain the last 4 digits of any number or only the first initial of the mother's maiden name.

Think of how often a vendor, store clerk, or other individual in the daily course of business requests any of the above information. Not that it's a great revelation, but the action of the SJC does serve to stress the importance of the confidentiality of much of the above referenced personal data. Whenever you are asked for this data, you should question why it is necessary for the inquirer to possess and ask whether or not there is any reasonable alternative to providing the requested information.

When you're out shopping this holiday season, protect yourself and your identity! Happy Holidays!

Bruce A. Bierhans

Originally posted at InjuryBoard by Bruce Bierhans

FINRA Issues "Auction Rate Securities" Phishing Scam Alert

Bruce Bierhans — Mon, 02 Nov 2009 17:10:48 GMT

Speaking of FINRA...FINRA has issued an alert to warn the public about an auction rate securites "phishing" scam. The scam attempts to take advantage of individuals who, unfortunately, have already been victimized by the purchase of these securities.

The email looks like it comes from FINRA and promises compensation from ARS settlements in exchange for personal information. It actually says the recipient is due $1.5million regardless of the amount of their ARS investment or loss. The email then "phishes" for personal information, including occupation, address and phone number.

The FINRA website is at www.FINRA.org.

Bruce A. Bierhans

Originally posted at InjuryBoard by Bruce Bierhans

Are Your Financial Advisers' Investment Recommendations "Suitable"?

Bruce Bierhans — Mon, 02 Nov 2009 10:19:09 GMT

Recently, I concluded a case in which I represented a financial adviser for one of the largest brokerage firms in the country against the firm itself. The firm was attempting to enforce a Non Compete clause in the advisers' employment contract. In fact, the adviser had left the firm because she felt she was being forced to sell products that benefitted the firm that were not necessarily "suitable" for the client/investor, and we defended the case on that basis. I have had many similar cases in which I have represented advisers.

It appears as if the "suitabilty" argument, as well as issues relating to the fiduciary obligations of advisers to their clients is finally being recognized by the industry, including FINRA (Financial Industry Regulatory Authority). FINRA reports that this year, investors won 45% of the decided arbitration cases, up from 37% in 2007. They further reported that "suitability" claims "predominated" in the years filings. Simply, suitability means that the fiduciary is required to make recommendations based upon the objectives and risk tolerance of the investor. As we argued in the above case, if the fiduciary is selling or recommending a product because it might impact his or her compensation, suitability is taking a back seat to the priorities of the brokerage house and the adviser. A recent example of these types of cases include the "auction rate securites debacle" (about which I have written in the past).

There are currently many debates taking place within the industry regarding application of the suitability standard and what agency within the industry should enforce the standard. As stated by the Texas securities commissioner. "We have to make sure that from a policy perspective that we don't allow capitalism to destroy itself."

As an indivudual investor, be your own watchdog! Ask your adviser questions. If you don't know why an investment is being recommended, inquire. Ask your lawyer or accountant for advice , but don't be quiet or passive. If you believe you were placed in an investment that was not suitable for you, take action. You are ultimately, your own best advocate!

Bruce A. Bierhans

Originally posted at InjuryBoard by Bruce Bierhans

Elder Care Issues?...You Don't Have to Face Them Alone

Carrie Strasser — Fri, 25 Sep 2009 15:20:19 GMT

The New York Times reported on a new trend in dealing with caring for elderly parents: hiring geriatric care managers. These professionals act as caseworkers for a family grappling with housing issues, difficult diagnoses, and a barrage of legal documents.

Unfortunately, regular insurance does not cover geriatric care managers, so you must pay for their services yourself. Managers charge by the hour and prices generally range from the $50 to $200. However, their assistance can provide you with much-needed advice in a very stressful and confusing time.

Additionally, the care manager can persuade elderly parents to make healthy changes in their lives that their children were unable to do.

That is another great reason to use a care manager: they can play the bad cop, taking away car keys or insisting that an aide move in, so you don’t have to.

The care manager can also be an objective and reasonable voice when family members disagree about the care plan for an elderly relative.

There are a number of ways to find a geriatric care manager in your area. Much of their work comes through referrals, so speaking with friends who have elderly parents is a good place to begin. Also, www.caremanager.org can assist you in locating a care manager in your area.

Be sure to consider the specific needs of your elderly parent when choosing a care manager and researching their background. Ask whether the person is a member of the national care managers' association, which has strict requirements.

Our office is here to assist you with any estate planning or elder care needs.

Originally posted at InjuryBoard by Carrie Strasser

Independant Contractor or Employee? The Strippers Ruling

Bruce Bierhans — Wed, 19 Aug 2009 20:47:37 GMT

The last time you went to an "adult entertainment" venue (no one reading this blog, I'm sure), did you think the "dancers" were independant contractors or employees of the venue. What...you weren't thinking about that? Well...if you're an employer, you'd better start thinking about it.

On August 6, a Superior Court Justice ruled that 70 exotic dancers were employees and not independant contractors, and further ruled that the employer violated the Massachusetts Employee Classification Law by misclassifying the stripper/employees. The dancers, employed at King Arthurs Lounge alleged they were "service employees" entitled to earn wages and keep their tips. The employer argued that the dancers only provided an "independant service" that was not an essential part of the business. The judge said that this was a "thinly veiled" argument (yes; he used that language) and that the dancers provided a service "integral" to the conduct of the business.

Of course, the employer will appeal. However, the law itself does contain a relatively stringent three part test. If the employer fails to meet even one part of the test, the worker will be considered an employee; not an IC:

a) The worker must be free from the employers presumed control and direction in performing the service;

b) The service must be "outside" the employers usual course of business, and;

c) The worker must be customarily engaged in an independant trade, occupation, profession or business of the same type.

The statute, M.G.L ch 149, Sec.148B provides for both civil and criminal penalties.

Every employer that uses Independant Contractors MUST review their relationships with staff to insure that they are not violating the law. Failure to do so may result in you being "stripped" of some significant cash.

Bruce A. Bierhans

Originally posted at InjuryBoard by Bruce Bierhans

Update on Cape Elder Securities Fraud Case

Bruce Bierhans — Sun, 12 Jul 2009 09:45:29 GMT

http://www.bostonherald.com/business/general/view.bg?articleid=1183759

A while back, I wrote about a case involving an 86 year old Harwich woman that was victimized by a financial adviser (so he said) that she met at a Harwich Senior Center investor forum.

This past week, after investigating our clients' claims, Secretary Galvin filed a 43 page securities fraud claims against all potentially responsible parties. Named in the suit were Robert Blaisdell and the Economic Development Finance Corporation.

Our office is further investigating potential claims against an attorney that claimed she was an "elder law attorney" and may have played a role in the scheme, along with Mr. Blaisdell. Once our investigation is complete, additional civil claims will be filed on behalf of our client by our office.

I cannot stress enough how important it is to know who you are dealing with when discussing your personal finances. The fact that someone speaks at a Senior Center does not, unfortunately, mean they are legitimate.

The link above provides you with further information. Feel free to call our office if you feel you have been the victim of securities fraud or any other type of investor fraud.

Bruce A. Bierhans

Originally posted at InjuryBoard by Bruce Bierhans

Government Takes New Steps Toward Food Safety

Carrie Strasser — Wed, 08 Jul 2009 09:42:47 GMT

Today, the New York Times reported that the Obama administration issued a new rule on egg safety and also promised future efforts to ensure the safety of spinach, lettuce, tomatoes, melons, beef and chicken. These are foods that have caused millions to get sick and thousands to die each year.

The Agriculture Department promised to develop new standards to reduce salmonella levels in chickens and turkeys by the end of the year. The Food and Drug Administration promised to advise the food industry by the end of the month on how to prevent contamination of tomatoes, melons, spinach and lettuce. And within three months the F.D.A. plans to release advice about how farmers, wholesalers and retailers can build systems to trace contaminated foods quickly from shelf to field.

Despite these sweeping goals, Michael Taylor, a food specialist and senior adviser at the food and drug agency, stressed that while these recent changes are a step in the right direction, there is a need for mandatory regulatory standards.

Last month, the House Energy and Commerce Committee approved a measure that would provide the food and drug agency with more "money and authority" to inspect facilities and weed out any contaminated ingredients. This measure also forces food manufacturers to implement safety plans and pay an annual registration fee to finance inspections.

As for reducing egg contamination, administrations have been trying for years to implement an effective plan, but have yet to be really successful. Pennsylvania and more than a dozen other states have instituted a voluntary program that has been effective in reducing infected hen houses down to 7% from 39%. The federal plan announced on Tuesday is modeled after the Pennsylvania plan but makes it mandatory.

Originally posted at InjuryBoard by Carrie Strasser

David v. Goliath: What Would Have Happened Without the Slingshot?

Bruce Bierhans — Wed, 17 Jun 2009 15:34:44 GMT

I've been at this legal thing going on 28 years. In all those years, I have always represented the "little guy" against the "big guy". The little guy doesn't just mean individuals. Very often, it means representing a small or medium size business against a much larger and more powerful adversary. The larger will always try to crush the small.

I'm reminded about this today because a potential business client with a claim against a formidable competitor asked me this week how he could possibly win against this foe that had done him wrong. First, I tell these folks that I have been handling cases against the mighty and powerful for years. Then, I ask them to think about what would have happened had David not used the slingshot against Goliath. Well, I say, in the legal business, we have our slingshots, as well.

The slingshots are many. First, technology has been a real leveler of the playing field. Although I did this before we had the tech we have today; it certainly is a help. I can crank out paper as fast as the fastest/largest law firm around. We also have the rules of procedure which are intended to ferret out the facts and evidence applicable to a case. For example, CEOs become timid when faced with their own internal emails. The wise and powerful often click the "send" button without thinking. This is not to say we don't have to fight for this information. I have yet to have a corporation voluntarily turn over a damaging piece of information or evidence without a fight and usually only after a court order. It isn't right, but it is part of the game. Finally, we have on our side the fight and tenacity of small firm trial lawyers. Most "little guy" lawyers are from small, lean trial firms that didn't go to Harvard to represent corporate America. We often went to schools like Suffolk Law and then hung out a shingle because we couldn't get jobs at the big firms. It may not be that way today, but it was 27 years ago when I graduated from law school. We learned how to practice law in the courtroom, not the boardroom.

How big are these adversarys? Over the years, my recall of some names on the other side of cases include Shell, Pfizer, Smith Nephew, Unisys Corp, Baxter, Johnson and Johnson and many many others. So...when you hear someone say they are afraid to assert or fight for their rights; remind them of David and the slingshot.

Bruce Bierhans

Originally posted at InjuryBoard by Bruce Bierhans

Score One for the Mortgage Industry

Olivier Kozlowski — Tue, 09 Jun 2009 15:10:23 GMT

Mortgage lenders secured a victory in federal court in Boston recently, with the partial reversal of a bankruptcy court decision from last year.

Last year the bankruptcy court in Boston ruled in In re Jaaskelainen that because a mortgage lender didn’t give both borrowers (a husband and wife) two copies each of the notice of their right to cancel the transaction within three days, the borrowers had the benefit of the extended right to cancel the loan (up to four years in Massachusetts).

Approximately a year and a half into their mortgage, faced with an impending foreclosure, the borrowers sent their lender a notice that they were exercising this extended right to cancel, and soon thereafter filed bankruptcy. The bankruptcy court ruled that the borrowers had validly exercised their extended right to cancel, and the mortgage lien against their home was gone. The court went on to say that because the mortgage debt was now “unsecured,” the borrowers did not have to meet their “tender” obligation, i.e., they did not have to pay back any portion of the debt. It is this last piece of the decision that was overturned last month.

In a May 28, 2009, decision, the federal district court upheld the Jaaskelainens’ rescission of their mortgage, but reversed the elimination of their “tender” obligation. There are several ways this case could play out, including an appeal to the U.S. Court of Appeals for the First Circuit, or further proceedings in the bankruptcy court in Boston. Our office will continue to follow the developments in this case and keep our clients updated. If you have questions about your mortgage, contact us at (781) 297-0005 or olivier@bierlaw.com.

Originally posted at InjuryBoard by Olivier Kozlowski

What's a 40B?

Olivier Kozlowski — Fri, 22 May 2009 14:56:08 GMT

Let’s face it, if you know about it, you probably have a strong opinion about it. If you don’t know what it is and are still reading this, you’ve probably got a reason to learn quickly.

40B refers to Massachusetts General Laws Chapter 40B, also known as the “anti-snob zoning” act. It’s a vehicle used by developers, predominantly in cities and towns that don’t have at least 10% of their housing deemed “affordable” by the state. The idea is that in order to increase “affordable” housing across the state, a developer can go before the town’s zoning board of appeals to get a single “comprehensive permit,” streamlining the typical permitting process. But that’s not generally what gets people up in arms. A 40B requires that at least 25% of the units being built in a development are sold or rented at a price the state considers “affordable.” In exchange, the developer can ask for waivers from local requirements, including density, setbacks, and permitted uses, among other things.

I say “ask for,” because that’s still what a developer has to do: ask for the waivers. Realistically, however, if the developer doesn’t get the relief, or feels that the process is taking too long, it can take the matter up to the Housing Appeals Committee (“HAC”). In that forum, the town has to show that it’s local concerns, including health, safety, environmental, planning or other concerns, outweigh the presumed need for affordable housing – so long as the town hasn’t met it’s 10% state-imposed requirement.

Clearly there are instances where that is the case. The HAC upheld Waltham’s denial of a comprehensive permit where the access to the site proved too dangerous. They upheld Barnstable’s denial of a waterfront development where the town had, in its master plan, earmarked the particular site for marine business – something that could not easily be located elsewhere in town (onshore). They have also upheld locally-imposed conditions, such as the installation of residential sprinkler systems and water storage tanks to address fire safety concerns and required developers to contribute to road improvements. In all these instances, however, the towns faced a heavy burden in demonstrating that their concerns outweighed the presumed need for affordable housing.

Whether you are opposing a 40B or trying to develop one, legal counsel knowledgeable in the particularities of Chapter 40B and its implementing regulations is essential. Our office has that expertise, and is available to answer your questions.

Originally posted at InjuryBoard by Olivier Kozlowski