By Laura Gerdes Long
A story concerning the death of a female athlete by suicide, her alleged rape, and the role played by the university she attended in the tragic facts has placed the issue of patient confidentiality squarely in the headlines. The story highlights the care that must be taken to protect a patient’s ability to speak candidly and honestly to his or her medical provider without fear that such information will be divulged to anyone else without the patient’s permission.
The female student athlete had committed suicide in 2011, approximately 16 months after her alleged rape in 2010 by another student athlete at the school. According to an email posted to Mizzou’s website on January 24, 2014, an ESPN producer of “Outside the Lines” wanted to know if University of Missouri officials planned to investigate or notify law enforcement about the alleged rape. Just hours before publishing the story, the ESPN producer asked university officials: Continue reading »
01/27/14 3:53 PM
Healthcare | Comment (0) |
Mizzou Story Highlights Tension Between Doctor-Patient Privilege and Protecting the Patient
By David A. Zobel
Missouri has once again amended its credit agreement statute of frauds to limit the ability of borrowers and guarantors to assert claims against lenders and the parties’ written credit agreement based upon oral promises or commitments. Specifically, Senate Bill 100, effective late 2013, extends Missouri’s prohibitions to reach not only oral, but now also unexecuted agreements or commitments to loan money, extend credit, or to forebear from enforcing repayment of a debt if the parties’ credit agreement contains certain disclaimer language as provided in the statute.
Extending the prohibition specifically to unexecuted agreements between the parties became necessary after Mo. Rev. Stat. 432.047 was limited by the Missouri Court of Appeals in its Bailey v. Hawthorne Bank decision. In that case the Court of Appeals broadly construed several different bank documents, including a bank loan summary which was never delivered to the borrower, to find a “credit agreement” as that term is used in the statute. Continue reading »
01/16/14 1:36 PM
Banking and Finance, Litigation | Comment (0) |
Missouri Changes Its No-Oral-Credit Agreement Disclaimer Language Requirements for Lenders
By Misty A. Watson
Prior to saying “I do,” those getting married for a second time have many more estate plan considerations to take into account than a first-time marriage.
Children from the previous marriage and spouses often have different interests and expectations about inheritance. If a large difference in age or health status exists between the new spouses, further complications can arise.
Without some type of waiver of spousal rights, a surviving spouse may have a right to elect against the estate plan that is put in place. In Missouri, this means the surviving spouse may receive one-third (1/3) of the estate, even if the will only provides for the children. Continue reading »
12/6/13 8:42 AM
Estate Planning, Family Law, Trusts | Comments Off |
Estate Planning for Second Marriages
By David A. Zobel
A St. Louis bookkeeper recently pled guilty to wire fraud for embezzling more than $70,000 from his condominium association. His scheme spanned more than two years and involved more than 50 unauthorized wire transfers from the association’s financial accounts to the bookkeeper’s own personal bank accounts. Unfortunately for condominium and homeowner associations, this type of activity is all too common and demonstrates the critical need for associations to prepare and implement systems of financial checks and balances.
What each association’s system should entail to sufficiently reduce the risk of improper financial activity (while also recognizing the need for effective and responsive management) will vary from association to association depending on several factors, including association size, level of involvement from the homeowners, and governing rules. However, many effective systems begin with distributing financial supervision and actions between several individuals. This practice includes: Continue reading »
11/18/13 1:58 PM
Litigation, Real Estate | Comments Off |
Condo Association Embezzlement Case Demonstrates Need for System of Financial Checks and Balances
By Misty A. Watson
Married couples in Missouri who file joint federal tax returns, including those not recognized as married by the state but recognized as married in other states, must also now file jointly in the state of Missouri.
Governor Jay Nixon issued the executed order clarifying that, under Missouri law, couples filing joint federal income tax returns must also file joint state returns.
Click here to read more.
Posted by Attorney Misty A. Watson. Watson’s practice focus is estate-related: planning, administration, and probate. She creates trusts, wills, financial, and health care powers of attorney, guardianships, and conservatorships.
11/14/13 3:19 PM
Estate Planning, Tax | Comments Off |
All Married Couples in Missouri Filing Joint Federal Returns Must Also File Joint State Returns
By J. Clifton Smith
The famous pop-punk band Green Day recently prevailed with a fair use defense in a copyright infringement case decided by the Ninth Circuit Court of Appeals. In Seltzer v. Green Day, Inc., the band was sued by Dereck Seltzer, an illustrator whose drawing titled Scream Icon appeared in a video that Green Day played on stage during its live shows.
Scream Icon is a black-and-white illustration of an anonymous face frozen in what appears to be a tormented scream. Seltzer originally intended for the piece to be a counterculture symbol among skaters and other young people in Los Angeles in the early 2000s, and he commercialized the work by selling posters, stickers and other prints of the image. Green Day used Scream Icon in a video that played while the band performed “East Jesus Nowhere,” a song commenting on social issues connected with politics and religion. This video consists of time-lapse footage of a brick wall in an alley as graffiti artists paint various images and tags on the wall, including several defacements of an image of Jesus. Throughout the video, which lasts about four minutes, a photograph of a weathered and torn poster of Scream Icon is visible in the center of the screen, but with a red cross spray painted on top of the screaming face. The video’s designer, Robert Staub, chose to use Scream Icon because he thought it matched the song’s mood and themes, including, presumably, the band’s anger about certain political events.
When Seltzer got word of the band’s use of Scream Icon, he sued the band, its individual members, their label, the video’s producer, and several other defendants. Seltzer testified at his deposition that he thought the video “tainted the original message of the image and…made it now synonymous with lyrics, a video, and concert tour that it was not originally intended to be used with.” But while copyright holders have the right to reap the economic value of their works, they do not have absolute control over the expressive content of their works. It is often said that all creative work is derivative. Artists build not only on the work of their predecessors, but also the work of their contemporaries, and copyright law incorporates this principle through the fair use doctrine. Continue reading »
10/29/13 11:17 AM
Entertainment Law, Intellectual Property, Litigation | Comments Off |
Court Sides with Green Day in Artist’s Copyright Infringement Lawsuit
By Joseph R. Soraghan
Not quite ten months late, the Securities and Exchange Commission (SEC) on October 23, 2013 proposed rules to allow entrepreneurs and other small businesses to advertise investments in their companies on the Internet and in other general venues, and to allow persons other than wealthy investors to purchase those investments. Congress, in the JOBS Act signed by President Obama on April 5, 2013, had told the SEC to propose such rules by December 31, 2012. (In fairness, the SEC was faced with great pressures from numerous quarters, including the legislators themselves, concerning the content of the rules, which made that deadline impossible to meet.)
This type of investing, called “investment crowdfunding,” was illegal, and will remain illegal until the process of review, amendment and adoption of final rules is complete. The SEC has asked the public for comment on the proposed rules within 90 days. At least a few months of further processing after that 90 day period will be required before the rules are final. Continue reading »
10/28/13 9:16 AM
Business Law, Emerging Business, Intellectual Property, Manufacturing and Distribution | Comments Off |
SEC Finally Proposes Rules to Allow Crowdfunding
By Jeffrey L. Michelman
Whether the large-scale trade patterns of a multinational company or the isolated export transactions of a small business, international sales transactions can involve complexities beyond those normally encountered in domestic sales transactions. The parties to an international transaction often operate at great distances from one another and in different economic, political and legal environments. Virtually all legal systems, however, allow for enforceability of international sales contracts subject to other national laws designed to promote national interests such as protection of domestic industries, the domestic economy, and national security.
In an effort to overcome the difficulties arising from the variety of national systems, parties to international transactions have attempted to define the “law” of their transaction by contract. Trade law started out quite simply but through the centuries became complex and unpredictable.
To counter this unpredictability, English and American commercial lawyers usually prefer detailed contracts which deal exhaustively with risks and remedies, trusting more in the inviolability of the writing between the contracting parties. There are nevertheless numerous risks to be covered in any international contract between the parties. Here is a look at a few examples. Continue reading »
10/15/13 12:54 PM
Business Law, Intellectual Property, International, Manufacturing and Distribution | Comments Off |
Viva La Difference: Risk Analysis in International Sales
By David A. Zobel
Illinois recorder of deeds offices are now authorized to implement fraud referral and review processes to detect and address fraudulent recorded instruments in their counties with the recent passage of Illinois House Bill 2832 (55 ILCS 5/3-5010.5).
The new law identifies 19 separate indications of potential fraud, but county recorders are each free to create a unique detection system for their county. Under these systems, once the recorder reasonably determines an instrument to be “fraudulent, unlawfully altered, or intended to unlawfully cloud or transfer the title of any real estate property,” the law affords the recorder two distinct courses of action.
First, recorder personnel may, at their own discretion, notify law enforcement officials, including the Department of Financial and Professional regulation, of the suspected fraud and request assistance for further review and potential criminal investigation.
Second, the recorder may, upon notice and confirmation of the potential fraud with the last owner of record, flag and refer the instrument to a local administrative law judge for hearing. If that judge determines the instrument to be legitimate, a judgment stating so would then be recorded along with the original instrument. However, if determined to be fraudulent, a judgment stating “that the document in question has been found to be fraudulent and shall not be considered to affect the chain of title of the property in any way” would then be recorded with the original instrument. No documents, regardless of legitimacy, would be “unrecorded” or struck from the county records.
Like many new laws, this new recording law is not without controversy. Proponents praise the law as an expedited and cost-effective alternative to filing a lawsuit to clear a victim’s title. However, critics complain the law unconstitutionally expands the powers of county recorders and may lead to unforeseen consequences in the recovering real estate industry.
While the ultimate effect (and constitutionality) of the new law remains to be seen, the law will almost certainly have an immediate impact on Illinois title companies. In some cases, it may lead to longer and more expensive administrative review and closing periods as title companies may be reluctant to insure any title during an active review/referral process. However, in others, the law’s finality in determining the legitimacy of unusual instruments in a chain of title may lead to decreased risks borne by title companies and thus decreased costs borne by the consumer.
Either way, the new law’s application and effect will certainly need to be considered by companies seeking to insure title in Illinois.
Posted by Attorney David A. Zobel. Zobel primarily represents individuals and corporations in the defense of civil litigation, including contract, negligence, and real estate matters. In addition to his court room work, Zobel assists in advising clients on contract and employment issues and regarding issues arising under the Sunshine Law.
09/25/13 8:25 AM
Business Law, Real Estate | Comments Off |
New Illinois Recording Law Designed to Combat Fraudulent Filings Likely to Have Immediate Impact on Title Insurance Industry