Consumer Law Articles

by Joe G. Veenstra, Attorney, Johns, Flaherty & Collins       

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Thanksgiving is just a few weeks away, and for many Americans that means time to empty all your liquids into 3-ounce containers, squeeze them all into one quart-size bag, remove your shoes and subject yourself to your choice of a nude (albeit anonymous) photo of yourself or an intimate pat-down by a stranger.

This leaves many of us cringing, complaining and sharing outrageous (usually embellished) stories of Transportation Security Administration agents amok with power. As travelers, we call it battery or an invasion of our privacy and blame terrorists, the government or both for encroaching on our rights.

Understanding the law, however, helps many people come to terms with the requirements of modern commercial flight. That doesn’t necessarily make airport security more enjoyable, but it can make it more tolerable.

Invasion of privacy encompasses several different torts. One is unreasonably intruding on the seclusion or solitude of a person. Another tort is battery, an act that includes touching someone inappropriately and thereby causing harm. Keep in mind that to some folks, getting groped can be as bad as or worse than getting punched in the nose.

Whether one’s privacy has been invaded is always based on what is reasonable under the circumstances. And in the case of TSA and airport security, the law provides for conditional invasion to try to increase safety. That means that if you choose to fly, you agree to accept that conditional invasion. And though it sounds harsh, people who feel violated by it can always choose not to fly.

That does not mean you abandon all privacy rights, however, if you do choose to fly. Here are the rules about what is lawful and what is not:

• If an agent wants to scrutinize you after you go through the scanner, you can request it be done (a) in private, (b) with a witness or traveling companion and (c) with an agent of your same gender.
• You cannot refuse to be touched if they think they need to touch you.
• Strip searches are not permitted. You should not be asked for one, nor should you submit to one.
• Advanced imaging technology (the cameras that take photos of what’s beneath your clothing) is optional for everyone. If you refuse, however, you must go through alternative screening which includes a pat-down.

If you feel an agent is overstepping his authority, you can ask to talk to a supervisor, or file a complaint with the TSA.

In addition to knowing your rights, it helps to follow these tips:

• Don’t joke around. Even goofily asking a question like, “Do I look like a terrorist?” can lead to additional screening and detainment.
• Don’t wear metal. The day of your flight is a good day to go sans belt and jewelry and wear steel-free, airport-friendly shoes.
• Follow the 3-ounce rule for liquids. Don’t try to carry any liquids or gels in containers larger than three ounces or more of them than you can fit into a quart-size zip-lock bag.
• Follow rules for medicine. If you’re traveling with medicine, be sure it’s in its original, marked container.
• Dress simply. The more screening agents can see of you, the less they have to wonder about.
• Alert screeners to any metal appliances or any medical equipment attached to or inside your body.

Occasionally people will end up on the no-fly list when they should not be. If that happens to you, you can use the Department of Homeland Security’s Travel Redress Inquiry Program, called DHS TRIP. This program offers a single point of contact for people who encounter recurring difficulties during travel screening. These would be people who are denied or delayed airline boarding, denied or delayed entry to and exit from the U.S. at a port of entry or border checkpoint and those who are continuously referred for additional screening. To file a complaint with DHS TRIP, visit their website.

For other instances where you feel your rights were violated, see an attorney. While those aforementioned outrageous stories are usually embellished beyond reality, there are occasions where under-trained agents exceed their authority. In those cases, it’s wise to address the problem to prevent the agent from repeating the offense with other travelers.

Despite this advice, remember that hundreds of thousands of Americans fly every day without any incident at security checkpoints. Following the tips above will help you be counted among them.

by Jennifer M. Schank, Attorney, Johns, Flaherty & Collins, SC  

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Companion animals can be wonderful additions to a home or family. They can provide everything from companionship and cuddles to protection and play. In fact, three in five U.S. households today have at least one companion animal, according to the American Pet Products Manufacturers Association. If you’re among them or looking to join their ranks, you’ll want to be sure you’re really ready.

Most people get that keeping companion animals is a big responsibility, starting when you first begin looking for that special animal and lasting through its lifetime. They understand there will be feeding, training and visits to the veterinarian. Often, however, people overlook the legal aspects of having companion animals.

If you live in Wisconsin, here are the top legal issues you’ll need to consider.

First, when looking for an animal to purchase and/or adopt, you need to be aware of two laws relating to how animals are cared for. The first is found under Chapter 951 and sets minimum standards for animal care, such as providing a certain level of shelter, food and drink and prohibiting mistreatment and harassment. It applies to owners, third-party caretakers, shelters, breeders, pet stores and day care facilities. (Note, it will also apply to you once you have a companion animal.) It’s a broad law that assures basic care for animals of all types, from cats, dogs and hamsters to horses and even snakes.

The second animal care standards law you need to be aware of is Chapter ATCP 16. Sometimes referred to as the puppy mill law), it heightens care standards for certain, specific dog breeders and shelters, including

• Dog breeders selling at least 25 dogs a year, from more than 3 litters that they have bred
• Dog breeding facilities from which at least 25 dogs a year are sold, from more than three litters
• In-state dog dealers selling at least 25 dogs a year that they did not breed and raise
• Out-of-state dog dealers who import at least 25 dogs a year into Wisconsin, regardless of whether they bred and raised them
• Non-profit animal shelters and rescue groups sheltering/fostering at least 25 dogs a year
• Animal control facilities that contract with a city, village, town or county.

Under Chapter ATCP 16, these entities now must be licensed, thus assuring satisfactory conditions at their facility, and they must have each animal certified by a veterinarian, provide vaccination records and wait until an animal is seven weeks old to sell it. Consumers need to be certain they’re buying from a compliant party.

There is no license or inspection required for pet owners, dog trainers, dog groomers, boarding kennels or anyone else outside the above list.

Second, you need to know the rules and laws that apply to your municipality as well as your community. Some developments have restrictive covenants that prohibit certain types of animals as pets, and often multiple-family and rental properties prohibit all kinds of animals. Additionally, you need to know and comply with animal licensing requirements in your city. It’s best to know all of that before you take the leap. Imagine coming home with your new Labrador puppy only to find he’s not allowed on your property.

Finally, be sure you understand your legal liability when it comes to your animal’s interactions with others. A dog that barks incessantly or bites neighbor children or a snake that slithers through your pipes to another residence could spell big legal trouble for you. You’ll want to understand the risks and take steps to avoid problems before you bring your animal home.

When you consider that it’s not uncommon for dogs to live 12 to 15 years (cats often live even longer), it’s clear this is a decision that takes careful thought. Weighing all the factors — from caretaking to legal responsibility — can help you prepare and give you peace of mind when you bring your new companion home.

I’ve been applying for jobs recently and a lot of employers want to conduct a background check. I’m curious what they will find. How can I conduct my own background check and what should I look for?

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It is true that more employers conduct background checks today than in years past, according to attorney Joe Veenstra. 

“A lot of employers do background checks now, especially in large corporations. They put a lot of money into hiring and training. They want to know the person is reliable,” he said.

Some do so to avoid future liability. A trucking business, for example, could be found negligent if it hired a driver with multiple citations for drunken driving and he or she later got into an accident with the company truck while intoxicated.

In some industries, such as childcare, home health care and others, the law requires background examinations. While ordinarily only adult criminal records are checked, juvenile records are opened for prospective childcare workers.

What can employers do with this information? “Employers cannot discriminate on the basis of conviction records unless the conviction substantially relates to that particular job,” Veenstra said.

Not hiring someone as a cashier who had recent convictions for bad checks likely would be reasonable. A conviction for battery on the other hand probably would not be related to a line position in a recycling plant and therefore a refusal to hire based on the conviction might be considered discriminatory.

Employers also may conduct credit checks on prospective staff members and they often look at social media like Facebook to see what they have posted.

“It is a good idea to perform your own background check before you send out your résumé to check to see if there are any problems or errors,” said Veenstra. “If you find problems, take the time to clean them up if you can.”

Where do you go?

• Check Wisconsin adult court records.
• Check the Federal Trade Commission for credit reports.
• Check the Wisconsin Department of Justice; fees are charged. You do not have access to juvenile records.
• Review what you have posted on social media and remove embarrassing materials.

For more information on background checks and civil rights laws in Wisconsin, contact Joe Veenstra at 608-784-5678.

My boyfriend and I own a house together (both names on title and mortgage). The bank allowed him to have the automatic monthly payment transferred from our joint checking account to his individual savings account without my permission. Can they do this?

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Joint bank accounts enable any of the account holders to deposit, withdraw or transfer funds into, out of or between accounts without the written consent of the other account holders, said family law attorney Maureen Kinney. As long as his name is on both accounts, he can move the money around however he chooses — and, of course, so can you.

I put my boyfriend’s name on my checking account, and he deposited his income tax refund in that account. A week later, he left me for another relationship. I withdrew all the money from the account before he could and wonder whether he has any rights in getting any of the money back.

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Either party may withdraw all the money from a joint account, according to Johns, Flaherty & Collins attorney Maureen Kinney. The other party may sue in small claims court to get some money back. The amount awarded can vary, depending on issues such as whether joint bills were paid from the account or how much each party contributed to the account.

The judge may also decide the case based upon how much money is at issue. If it was $5,000, for example, the judge might weigh that clearly the person who put the money in there was not intending for the other person to have it all. On the other hand, if it’s only a couple hundred dollars withdrawn, the judge may weigh that the parties chose to establish a joint account intentionally and that either party can withdraw any amount they choose. The other party then would have to argue that the court should determine that the money is subject to a constructive trust — that it’s really there for the benefit of the person who deposited the money. 

Putting money in a joint account with someone who is not a spouse does give control over your money to someone else and getting it back can be difficult. (In a spousal situation the divorce court can look at situations where one spouse takes off with all the assets in an account as part of the whole divorce settlement.)

Can one person on a joint account close the account without a signature from the other account holder, assuming the two are not married?

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As a general practice, most banks will not close a joint account without the signature of each of the account holders, regardless of their marital status, according to Johns, Flaherty & Collins attorney Brian Weber. However, either party on a joint account may withdraw any or all of the funds without the signature of the other account holder. 

by Jennifer M. Schank, Attorney, Johns, Flaherty & Collins                       

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Bankruptcy should be a last resort for people facing more debt than they can possibly repay. But stuck somewhere between people who can’t pay and those who can is another kind of debtor: the debtor who can pay if he or she can get payment terms adjusted.

Oftentimes, debtors work directly and successfully with creditors to negotiate new payment terms, but for those unable to negotiate feasible terms, Wisconsin has another option. It’s a debt amortization proceeding, commonly referred to as a Chapter 128, and allows debtors to amortize problem debts through a scheduled repayment plan. In a Chapter 128, debtors can choose which creditors they would like to include in the petition while continuing to pay creditors remaining outside of the petition. Additionally, a Chapter 128 stops interest and penalties from accruing on specified accounts and prohibits those creditors from continuing to collect on their debts, so individuals are capable of repaying debts in full.

In order to file, you must be a Wisconsin adult resident and wage earner. It’s not clear whether Social Security, maintenance or unemployment income count as wages, but judges generally want to work with debtors to be successful in paying their debts. Traditionally, judges have been inclined to confirm plans as long as there has been some sort of income stream. That trend may be changing, however, narrowing the types of income that constitute wages.

Upon filing a 128, an automatic stay goes into effect for creditors included in the petition, preventing interest from accruing and creditors included in the petition from taking any actions to pursue payment. With a Chapter 128, the debt must be repaid in full within 36 months. If the petitioner defaults on payments, the 128 petition is dismissed and interest and penalties begin accruing again. Additionally, interest that would have accrued during the proceedings becomes collectible, as if the proceedings had never been filed.

Once the repayment plan is approved, a trustee is appointed. The trustee will notify the creditors who will have a chance to object to the amount owed or the plan itself. The trustee will continue to serve as an intermediary throughout the repayment process. Debtors then pay the debt through the trustee, via direct payments or voluntary wage assignments. The trustee is compensated anywhere from 7 percent of the debt for a wage assignment to 10 percent for direct payments.

A 128 proceeding provides several benefits to debtors.

• Cost — The filing fee for a 128 is approximately $30, while a filing fee for a bankruptcy is $300 to $400. Additionally, attorneys’ fees for bankruptcies tend to be two to three times more expensive than those for Section 128 proceedings.
• Ease — Debtors in bankruptcy are required to submit a complex petition and schedules, including all of their assets, creditors and finances, along with a calculation of exemptions. They are also required to submit taxes and proof of secured debts to the bankruptcy trustee. A Chapter 128 is usually one to three pages of a petition where the debtor only list debts he or she wants to include in the repayment plan. So if you have five credit cards, but only one is a problem, you need list only the one where you’re seeking relief from interest and penalties.
• Stigma — For people who are concerned with the stigma or morality of filing bankruptcy, a 128 is considered “debt amortization” and provides a way for them to make good on their debts.

A Section 128 proceeding is a good option for people who are struggling to repay debt, giving them an opportunity to meet their obligations. But there are some instances where bankruptcy may truly be the only option. If you’re struggling with debt repayment, consult an experienced bankruptcy attorney. Many offer complimentary initial consultations to help you identify the steps that are best for you.

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Communicating with the business should be your first step in any billing dispute, according to attorney Joe Veenstra. 

“If you ignore the bill, it could end up in collections which would affect your credit rating,” he said.

“The company should be willing to verify the charges in writing,” he added. “If you dispute what is documented, contact that business and tell them you are contesting the bill and why. If you simply don’t have the money to pay the bill, talk to the business about setting up a payment plan.”

If you find yourself being harassed, Veenstra recommends contacting a lawyer and documenting by date, time and content any calls, e-mails, letters and voicemails from that business or collection agency.

“You are protected from harassment under the Fair Debt Collection Practices Act,” he said.

He also advises documenting all calls and emails and responding in writing to the customer. “Once the project is completed or the goods sold, make sure your bill is timely,” Veenstra said. “If it is not, the client may have spent money allocated for the work.”

Most of all, he said, “You want to maintain a level of trust with your customers that you will deliver quality services or goods in a timely manner.”

Mr. Evans, suffering from a toothache, visits Dr. Brown, a dentist, and asks to be treated. Dr. Brown agrees to examine Mr. Evans and fix the problem, and Mr. Evans agrees to settle the charge, unknown at this time, afterwards. Dr. Brown successfully handles the problem with a simple extraction, and then charges Mr. Evans $10,000. Recognizing that the usual and customary charge for this procedure, in this geographical area, is about $250 at most, Mr. Evans refuses to pay. Can Dr. Brown bring suit against Mr. Evans for the $10,000? Under federal or state law is Dr. Evans limited to the usual and customary fees?

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Yes, Dr. Brown can bring suit against Mr. Evans, but it’s highly unlikely he will be awarded $10,000, according to litigation attorney Terence Collins. The rule is that when no specific fee is quoted for professional services there is an implied agreement that the charges will be ordinary and reasonable. In this case, it doesn't look like there was anything unusual about Mr. Evan's condition that required Dr. Brown to do anything extraordinary to treat it. Therefore, a court would award to Dr. Brown the amount that would be ordinary and reasonable for the service performed and that would be a lot closer to $250 than $10,000. 

You may also be interested to know that the prevailing party in a lawsuit is awarded statutory costs, such as filing fees, copying fees, etc., along with statutory attorneys’ fees. The amount of statutory attorneys’ fees would be either $50 or $100, depending on how much the prevailing party was awarded for damages in the underlying lawsuit.

 

by Terence R. Collins, Attorney, Johns, Flaherty & Collins

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When the high temperatures of summer hit, there’s nothing like a day on the water. Whether you’re skiing, fishing or just cruising, the lakes and rivers of the Coulee Region provide a wonderful escape.

Unfortunately, many boaters begin their journeys ill-prepared — in their knowledge of local boating and water safety laws, if not in terms of equipment too.

Most local waters are governed by local, state and federal laws. The rules among various municipalities and government agencies don’t differ dramatically. Each will have rules against operating a boat while intoxicated. Each will have rules about speed, wake zones and registration. The rules may not be exactly the same, but they will be substantially the same.

Rules locally are enforced by the La Crosse County Sheriff’s office, along with the Wisconsin Department of Natural Resources (DNR) and the U.S. Fish & Wildlife Service.

Boating violations carry penalties of anywhere from $20 up to $1,000 each. Common local violations include not having enough life jackets or a throwable life-saving device on board and overloading a boat. These violations can cost up to $50 for the first offense and $100 for a second offense. You may also be required to attend a boater’s safety course — which isn’t a bad idea for anyone hitting the water.

Intoxicated boating is another common local offense, and the rules and penalties are exactly the same as driving a car while intoxicated. Fines for first offenses run $150 to $300, and second offenses (occurring within five years of the first offense) run $300 to $1,000 and five to six months in prison.

In addition, Wisconsin law carries a number of other requirements concerning watercraft registration, mufflers and noise levels, waste discharge, boater age and horsepower restrictions, reckless and negligent operation, speed and accident reporting.

Ignorance is never a reliable defense, so be sure you know and understand the rules before launching your boat. Also, while boater safety courses are required for any boaters between 16 and 18, they’re recommended for everyone. Additionally, be sure to read the Wisconsin boating pamphlets available throughout the area or Boat Ed’s online boating law handbook developed in conjunction with the DNR (www.boat-ed.com/wi/handbook).

Keep in mind that boating laws make up only half of the safety equation. The other half comes from experience. Just as you must take time to learn the rules of law, you need to take time to learn the rules of nature. Many tragedies on the water could be avoided if people would take time to get to know the river with more seasoned boaters before heading out on their own.

People often do not understand the power and the danger of water, and particularly the Mississippi River. It is a wonderful, gorgeous resource that makes our area special. Understand it, use it, enjoy it and respect it.

 

by Brian G. Weber, Attorney, Johns, Flaherty & Collins

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Spring is just a couple months away, and for many homeowners, that also signals the beginning of the building and remodeling season.

Home building and remodeling projects can be stressful. You have a myriad of decisions to make, invoices to pay, and if you’re remodeling, a constant stream of workers, noise and mess to live with.

One of the greatest sources of stress, however, comes when contractors fail to meet your expectations, whether it be in the materials used, the timing of the project or the final bill they send. The key to avoiding that stress is communication, and the key to clear communication is to get it in writing.

It begins with a written contract. The contract should be specific, including the materials to be used, costs, payment terms, warranties and, in some cases, a drawing or diagram of the project. Be sure you understand all aspects of the contract. If it is missing an important detail, add it before signing the contract.

With most building and remodeling projects, changes will occur during the process. The contractor may run into termite-infested wood in your home, or you may decide you want to use a different type of floor covering. As those changes occur, track them with change orders.

Change orders are amendments to the contract allowing you to adjust costs and other project specifications along the way. They are a critical tool for tracking expenses and assuring you and the contractor understand the changes to be made.

If despite your written communications, you experience problems with your contractor, the best way to get your project back on track is to sit down and talk about what’s happening. Be sure the contractor understands your concerns, and make sure you understand why things are happening the way they are. Following that meeting send a follow-up letter spelling out decisions that were made.

If problems persist, you may want to contact an attorney who deals with these kinds of issues. Many times, a qualified attorney can help resolve the communication issues before lawsuits become a consideration.

Finally, when your project is finished and you’ve paid your bills, be sure to get a written lien release from any and all contractors who worked on your project. Even if you have a general contractor, you will still need lien releases from any plumbers, electricians, painters or others associated with the job.

A lien release provides you a formal release showing that the contractor has been paid in full for his or her work on your home. Without such a release, a contractor can place a lien on your property for any amounts still due. In a worst case scenario, the contractor could file a lawsuit to get payment, which could eventually result in a foreclosure.

As you approach relationships with contractors, it’s important to remember that most are highly motivated to finish your project to your satisfaction. They want to move on to the next project, and the longer yours takes, the longer it takes them to bring in additional revenue.

Clear, written communication will help both you and the contractor avoid legal headaches and, more importantly, get what you want out of the project.

Reprinted with permission from Holmen Courier and Onalaska Community Life, January 2006.

by Brent P. Smith, Attorney, Johns, Flaherty & Collins

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Whether you need help with estate planning, a divorce or a personal injury lawsuit, you’ll want and need to have the right attorney in your corner. One look at the yellow pages, though, illustrates the many options available and can overwhelm a person who’s never worked with an attorney.

Often the best place to start is with friends, family members or business consultants who’ve used attorneys, especially for matters similar to yours. Once you have some referrals, the following tips can help you narrow the field to determine which attorney is right for you and your case.

• Check the Web site. Go to the attorney’s or law firm’s Web site. Many list individual attorneys by name and offer biographical information. Web sites can also give you a feel for a firm or attorney’s range of practice and indicate whether they have experience in handling matters like yours.
• Understand the ratings. Certifications, designations and associations can sound impressive, but they can be misleading. Some distinctions are truly that, requiring certain experience, passing rigorous exams and more. Others are based on less stringent standards.
• Interview potential attorneys. In many ways, hiring an attorney is like hiring an employee, and you wouldn’t want to choose without first interviewing the candidates.

One indicator that consumers can rely on is Martindale-Hubbell peer-review ratings. They include AV, BV and CV. Attorneys with these ratings have demonstrated both professional legal ability and ethics. Martindale-Hubbell directories are available at most public libraries.

When scheduling the interview, establish with the attorney how you expect to spend that time. It’s fine to discuss your particular situation and how the attorney thinks he or she may be able to help. But if you expect a free initial consultation — which many attorneys offer — be sure to clarify and agree on that up front.

Write down the scope and facts of your matter before the interview. That will leave less room for error as the attorney assesses your situation and explains what can be done.

During the interview, ask about the attorney’s experience with the sort of matter you’re bringing. If you have a boundary dispute, you could ask whether he or she has handled other such disputes. If you have a personal injury case, you could ask about his or her experience in that area, including outcomes.

The interview also provides a good opportunity to be sure you’re comfortable with the attorney’s approach and style. While personality shouldn’t be the only factor, radically different styles or conflict between you should be red flags. The way you’re treated during the interview is an indication of how you will be treated as a client.

Finally, be sure to ask about a time frame for completing the matter, who else from the office might be working on your case and how you will be billed.

Understand the fee structure. In some cases, attorneys may work on a contingency-fee basis, but most often they bill at an hourly rate. Be sure you understand what you will be billed for and when. Most law firms will not charge for secretarial time, but they do charge for paralegal and attorney time. They also charge for out-of-pocket expenses, such as copies and court filing fees.

When you compare costs keep in mind that while one attorney may charge a lesser hourly rate, the attorney with the most applicable experience may yield better, faster results.

Ask for and check references. Ask the attorney for additional references then be sure to check them. Ask references whether the attorney was responsive to phone calls and questions, whether the fees were reasonable and whether the outcome was satisfactory.

Once you’ve chosen an attorney, it’s wise to get your agreement in writing. The agreement should describe the scope of legal representation to be provided, the hourly rate and billing arrangements.

In the end, the attorney you choose will be someone you trust, who understands your particular legal concerns and whom you can afford. At that point, the most important question you can ask is "Which lawyer do I have the most confidence in?" Your answer is your new attorney.

Reprinted with permission from Holmen Courier and Onalaska Community Life, June 15, 2007.

by Michael L. Stoker, Attorney, Johns, Flaherty & Collins

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Most consumers at one time or another have opened their mail to learn they are a member of a class-action lawsuit. Oftentimes the packets are bulky with several pages of legal language outlining the case and their rights. Intimidated by all the paper, many people simply throw the packets away. However by doing so, they may be discarding the opportunity for both justice and compensation.

Understanding how class-action lawsuits work can make the process less intimidating and the case for participating in them more powerful.

A class action is a lawsuit in which one or more plaintiffs pursue claims on behalf of a much larger group against one or more defendants for some type of common injury or offense. Many that make headlines are consumer cases, but they can also involve anti-trust claims, securities, fraud, employment discrimination or environmental claims.

Class-action lawsuits serve justice in two primary ways. First, they allow ordinary citizens to pursue small claims they otherwise might not be able to afford against very large and wealthy organizations. Second, they provide a system for punishing wrongdoers, thereby deterring that harmful conduct by both the defendant and others in the future.

Your first step when you receive notice that you may be a member of a class-action, is to determine whether you’ve been properly identified as being part of the class. For example, if you receive a notice involving Verizon and you have never used Verizon, it’s a mistake.

Second, check to see what your obligations are to continue as a member of the class.

Your notice will indicate whether it’s an opt-out or opt-in situation; most will be opt-out. Generally, you should opt out only if you have a large individual claim that you believe would be beneficial to pursue on your own. For example, if you suffered major, permanent injuries from using Vioxx, the value of your claim may far exceed what you would be entitled to as a member of a class. On the other hand, if you have a $200 claim against Microsoft in an antitrust lawsuit, it makes more sense to remain part of the class because your legal costs to pursue action on your own would exceed $200. Moreover, you would still have the burden of proving the company is guilty of antitrust activity.

Third, satisfy any required "proof obligations" described in the notice. This is often the point where class members abandon the process, but it is a necessary step to assure fairness both to the defendant and to all the plaintiffs.

Finally, return the proof of claim to the address indicated before the deadline specified in the notice.

If you participate in a class-action lawsuit, you do not need to hire your own attorney. Attorneys who represent the lead plaintiffs have an obligation to each and every member of the class. These attorneys typically are paid out of the damages recovered in the case, with fee awards subject to court review and approval.

It’s important to note that if you do remain a member of the class, you are bound by the settlement or judgment in the action. This means that if the "class" agrees to settle for a certain amount of money, or a judge awards a certain amount of money, you have no right to appeal it in court. You must accept what has been accepted on your behalf by the class.

When determining whether to participate in a class-action lawsuit, it helps to consider public along with personal interest. You may find that participating results personally in only a few dollars for you, but when you consider that you may be helping society and the public by participating in a legal process that rights wrongs, the overall benefits can be much greater.

Reprinted with permission from Holmen Courier and Onalaska Community Life, August 17, 2007.

With the new school year, I'm getting bombarded with parental consent and release forms. While they're required for my child to participate in both regular and extracurricular activities, I'm worried about absolving the people in charge of any responsibility for injuries that may occur. What should I do?

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Yes, this is the time of year when there are many forms to be signed, but the issue is not limited to school liability releases, according to attorney Brent Smith. 

"I've signed release forms for many different types of activities for my own daughters," he said, noting that parents need to know what they're signing.

"The releases are intended to make liability nonexistent should the child be injured," said Smith. That means if the youngster is hurt while participating in an activity, the provider is not held responsible.

"Courts generally don't like what is called an exculpatory clause that limits or eliminates potential liability when people sign the consent form," Smith said. "They don't like to see people sign away claims for negligence."

Another question the courts will consider is whether a parent can sign away the rights of his or her child under age 18. In Wisconsin, some courts have held that parents cannot, while others have said they can if the release is drafted correctly. One factor the court considers is whether a reasonable person can understand the release's intent.

Whatever the case, it's difficult to predict which way a court will decide. Smith's advice is to make sure you understand the release, and ask questions before you sign. If you have serious concerns, choose another activity for your child.

For more information about legal liability, contact Brent Smith at 608-784-5678.

by Brian G. Weber, Attorney, Johns, Flaherty & Collins

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Even the most conscientious consumers can find themselves facing financial problems. Job layoffs, illnesses or other catastrophes can lead to unexpected debt and unforeseen delays in paying bills. Fortunately, consumers today have a number of resources to help get back on track. It just requires planning and persistence.

If you find yourself drowning in debt, the following guidelines can help you find your way out:

First, assess your situation and develop a budget. List all your assets and all your liabilities to get an accurate picture of where you stand. (In the process, you may find some assets you can sell in order to pay off some debts.) List fixed expenses, such as your mortgage, and variable expenses to determine how much you can afford to pay each month toward eliminating your debt.

Second, contact your creditors immediately. Be proactive, and explain your situation to creditors in an effort to develop a modified payment schedule. Because creditors ultimately want to be paid, you’ll find many of them accommodating and reasonable, as long as you are as well.

Third, understand the consequences of delinquency or nonpayment. Secured debt, for example, is usually tied to collateral or applies to tangible items such as homes or cars. If you remain delinquent on payments of secured debt, creditors may repossess the property, foreclose on the loan or attach the personal property designated as collateral.

Fourth, use credit counseling services carefully. If you are unsuccessful in regaining control on your own, a credit counseling service may be helpful. Look for a service that offers in-person counseling with certified counselors and one offered through your financial institution, local university or other credible referral source. Remember, just because a service markets itself as nonprofit does not mean they’re altruistic. Be wary of high- or hidden-fee organizations, those who pressure you for contributions and those who require personal information about you before providing you information about them.

Fifth, consider debt consolidation. Consolidating your debt into one loan can not only reduce your monthly payout but also the amount of interest and fees you pay.

Finally, consider bankruptcy only as a last resort. While bankruptcy can provide a fresh start for debtors in over their heads, it also stays on your credit record for up to ten years and makes it much more difficult to obtain additional credit, even for purchases as legitimate as a home.

If you are certain bankruptcy is your only option, you’ll need to choose between a Chapter 7 or Chapter 13 bankruptcy. If you’re eligible for a Chapter 7, all assets are liquidated, except for some limited exemptions, such as a car, work materials and basic household furnishings. Eligibility is based upon your income and debt levels.

A Chapter 13 bankruptcy may be a better option for people not eligible for a Chapter 7 bankruptcy. This form of bankruptcy allows you to keep your property as long as you pay off a court-determined default amount over a three- to five-year period. After all the default plan payments are made, you receive a discharge of your debt.

If you’re facing debt-related legal difficulties, contact an attorney who specializes in bankruptcy. A qualified attorney can help protect your interests, assist in determining whether you’ve exhausted all possibilities for repayment and clarify the consequences of any action you take. Like many life choices, the outcome may impact you for many years to come.

Reprinted with permission from Holmen Courier and Onalaska Community Life, November 2005.

I’m behind in my credit card payments. Now they are demanding immediate payment in full. Can they do this?

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When you obtain a credit card, you agree to be bound by certain terms. You will receive a written statement of those terms from the credit card company. Many agreements with credit card companies permit the company to seek immediate payment of all credit card charges if a customer gets behind in payments. 

When the agreement provides for this, a company can seek immediate payment for an account in default, meaning one in which one or more payments are missed.

However, from a practical standpoint, most credit card companies will not demand payment in full, because they make money off the interest we pay," said Johns, Flaherty & Collins attorney Brian Weber.

While a company could go after a customer for missing just one payment, it is much more likely to take action for multiple missed payments. The type of action depends on how much is owed on the card.

In Wisconsin, debt of less than $5,000 goes to small claims court, which is faster and less complicated. A higher debt goes to Circuit Court in a civil lawsuit, which can take 18 months or longer. Increasingly, credit card contracts contain arbitration provisions that provide for arbitration to resolve the issue.

"Generally, small claims court is quicker than arbitration, and arbitration is quicker and less expensive than a civil lawsuit," Weber said.

In all of these cases, debtors can give their side of the dispute in court or to the arbitrator. Many credit card agreements provide that the law that is applied is from the state in which the credit card company is incorporated, rather than the customer’s home state.

With legal and court costs, growing interest and penalties, it can be very costly to ignore credit card payments, according to Weber.

"If you get in a situation where you are in over your head and it appears that you will never pay off your credit card balance, it may be best to consult a debt consolidation advisor or an attorney," he said.

 

When I divorced my husband, the property settlement called for the homestead property to become the sole property of my husband. He subsequently failed to get my name removed from the mortgage and is defaulting on the loan. The bank also refuses to remove my name even when I present them with the divorce decree and property settlement agreement. Can they do this? How can I get my name removed from this property before foreclosure?

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When the bank agreed to finance your mortgage, they loaned the money to both of you, according to family law attorney Brian Weber. "You and your ex-husband cannot change the terms of that agreement without all the parties’ approval, including the bank. The only way to get your name removed from the mortgage, absent the bank’s approval, would have been for your ex-husband to take out a new loan. Because that didn’t happen, you still are responsible for any delinquencies or deficiencies on the loan." 

If the bank forecloses on the property and obtains enough money in the sale to satisfy the outstanding balance, Weber said you will have a foreclosure on your credit record but you will not owe any money. If, however, the bank forecloses and the proceeds are not sufficient to satisfy the outstanding balance, you along with your ex-husband will still owe money to the bank.

In that event, the Wisconsin family court system may have some remedies. A family law attorney can help guide you through the process.

 

I recently got divorced and want to change my legal name back to my maiden name. What steps do I need to take?

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Changing your name back after a divorce is easier than you think, according to attorney Ellen Frantz, whose practice includes family law. 

During a divorce you can decide if you want to resume a former name," she said. "You just put it into the judgment paperwork that you will resume your former name."

While it usually applies to women who change their names after marriage – and divorce – the same rule applies to men. "It is a personal choice," Frantz said.

The actual change does not have to occur immediately. "Some decide to change right away and others wait until their children are grown," she said. You must notify Social Security, which will need a copy of your divorce judgment, to change your records.

If you decide after divorce that you want to go back to your birth name but did not have it in the judgment, Frantz said it may be possible to amend the divorce judgment to allow you to resume a former name.

If you choose to change your name for other reasons than marriage or divorce, you must go to court. You pay a court-filing fee, publish three legal notices in the newspaper and have a short hearing before a judge. If you want to change your name for reasons other than divorce or marriage but hold a professional license in Wisconsin (other than to teach in public schools) it is a little trickier. The licensing board must approve the name change to something other than what is on your license.

Children’s names also may be changed. If the child is under the age of 14, the change requires approval of both parents (or one if the other does not object after notice) or the surviving parent. If both are deceased or parental rights have been terminated, the petition to change the child’s name can be made by the legal guardian or a person with legal custody. After age 14, a child may decide for him or herself about a name change. No special requirements are needed to change a child’s name in an adoption situation as parental rights would have been terminated and the adopting parent(s) choose the new name for the child.

For more information, contact Ellen Frantz at 608-784-5678.

My local power company just requested an easement to erect some windmills on my farm property. What is an easement, and do I have to oblige?

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An easement is the legal right to use someone else’s land for a particular purpose. Easements are sought and granted for a variety of uses, such as access roads, utility lines and windmills. 

"Old-time law refers to easement interests as dominant and servient estates," says Johns, Flaherty & Collins attorney Greg Bonney. "Property owners have the servient estate which is the land burdened by an easement, and the easement holder has the dominant estate indicating the property is for their use."

As the servient estate, Bonney says you would still own the property and pay taxes on it while the power company would own the windmills and could take necessary steps on your property to maintain the windmills. While those steps may prevent your full enjoyment or use of the property, there are many cases where easements actually benefit the property owner.

You do not have to oblige the power company, but you may be subject to eminent domain rules allowing the government may impose the easement.

Whether you choose or are forced to grant the easement, be sure to negotiate for the best deal you can. In many instances, property owners are better off simply selling the land, according to Bonney. "Whatever the case, negotiate the best deal you can. If that means granting an easement, be very restrictive and specific with the rights you grant. And before you sign anything, it’s best to have a lawyer review the agreement."

For more information about easements, contact Greg Bonney at 608-784-5678.

A family member from another state recently visited and brought us a variety of fireworks for our annual Fourth of July celebration. How do I know which ones are legal? What are the consequences if I get caught lighting illegal fireworks?

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Some would argue there is nothing more American than apple pie, mom and fireworks, especially around the Fourth of July. 

But fireworks — anything manufactured, processed or packaged for exploding, emitting sparks or combustion that does not have another common use — are illegal in Wisconsin, according to attorney Cheryl Gill.

Only a group with a valid municipal permit may use Roman candles, firecrackers, bottle rockets, mortars and anything else that explodes or leaves the ground.

You can’t possess or use fireworks without a valid permit issued by the mayor, or village or town chairman," Gill said. "A permit may only go to a group and never individuals. A roadside vendor cannot issue a permit.

"Generally, no permit is needed for sparklers, stationary cones and fountains, toy snakes, smoke bombs and caps, noisemakers and confetti poppers with less than 1/4 of a grain of explosive mixture.

It’s true that many people ignore the state statute and local ordinances. If caught, the penalty could be $1,000 for each firework in your possession. "If you are found with 20 different fireworks, you could face a $20,000 forfeiture," Gill said.

Police also can seek an injunction against your using fireworks as a nuisance. If you violate that legal decree, you could be charged with a misdemeanor punished by a fine of up to $10,000 and up to nine months in jail.

Why all that fuss over fireworks that seem so common? More fires are reported on the Fourth of July each year in this country than any other day, with half related to fireworks. Also, nearly 11,000 people a year are treated in emergency rooms for fireworks-related injuries.

Gill’s best advice? Watch an official fireworks program in your local community.

I have a pair of bellbottoms that I found at a thrift store with flares made from an old American flag. Is it considered flag desecration to wear them? It seemed patriotic to purchase them.

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Wisconsin does have two flag desecration statutes still on the books, but it is not likely you’ll go to the big house for wearing those jeans, according to Johns, Flaherty & Collins attorney Ed Rue. 

“One was ruled unconstitutional for being too vague and the other has been criticized by a court,” Rue said.

The statute that makes flag desecration a class I felony was found by the Wisconsin Supreme Court to be unconstitutional because it was overly broad and infringed on the constitutional right to free speech.

The second statute, a misdemeanor, punishes improper use of the flag. While still on the books, Federal Judge Barbara Crabb ruled the law was essentially the same as a Washington statute that was held to be unconstitutional by the United States Supreme Court.

With both laws never repealed, it is possible in theory to be arrested, but “whether or not you could be prosecuted and convicted is another matter,” Rue said. “Rarely, if ever, are these laws enforced in Wisconsin.”

For more information about proper or improper use of the American flag, contact Johns, Flaherty & Collins at 608-784-5678.

How can we find out about foreclosure sales and how do they work?

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Across Wisconsin in 2008 and into 2009, sheriff sales of foreclosed homes hit record numbers. Finding these sales, often held dramatically on the front steps of the courthouse, is easy. 

Legal notices are published in the county newspaper of record for six consecutive weeks prior to the sale, appearing no more than eight weeks in advance. That notice includes a description of the property, time and place of the sale and the clerk in charge.

More difficult than finding a sale is identifying when such a home is a good buy, according to attorney Brian Weber, whose practice includes working with banks on foreclosures.

“Nobody wins in a foreclosure, or very rarely,” he said, adding, “You need to do your research to make sure the property is worth what you would want or have to pay. Also learn whether there are liens like property taxes against a property that you must assume.”

Since it takes six to 12 months to complete a foreclosure sale, and that happens only after a family has had serious financial problems, the house may not be in the best repair. “Very rarely do you find a house that is fully ready to move into,” Weber said.

The actual foreclosure procedure includes breach letters, a lawsuit, public notices, judgments, newspaper publication, the foreclosure sale, confirmation of the sale in court and deed transference.

“Almost always the financial institution is the only bidder,” Weber said. “If you buy a foreclosed property at a sheriff’s auction, you have to put a minimum of 10 percent down in cash or equities the day of the sale. Confirmation comes within two weeks from a judge who approves the sale, normally only a formality. At that time, you pay the balance of your bid.”

For more information on foreclosure law, contact Brian Weber at 608-784-5678.

La Crosse Consumer Lawyers | La Crosse Consumer Fraud Lawyer

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It has never been easier for criminals to make a buck via consumer fraud—or for us to fall for these scams. Technology, including the Internet and text messages, has made it easy for unscrupulous people to find their victims.

“Most people get hooked into consumer fraud today through email,” said Attorney Cheryl Gill. “It can happen to anyone.”

You may get an offer to make big bucks working at home or to get a free product or service—only to find shipping and handling costs are more than the item itself. Or there may be a “phishing” email scam that appears to come from your bank asking you to “validate your bank account” by emailing or texting your Social Security number or password to it.

Don’t do it. As sophisticated as we might think we are, Gill said, this old adage still applies: “If it sounds too good to be true, it probably is.”

How do you protect yourself from scams?

• Read the fine print, which may contain critical information—such as signing away your rights to sue if you have a problem.
• Research the company before you do business with it by searching for complaints against the specific company. You can go to the Better Business Bureau, Angie’s List, or the Wisconsin Department of Agriculture, Trade and Consumer Protection.
• Check out insurance issues with the Office of Insurance Commissioner, or financial issues with the Wisconsin Department of Financial Institutions.
• Get your telephone numbers on the no-call registry so they can’t legally call you at home.
• Report fraudulent or “phishing” email to your Internet service provider so it can be blocked.

You can file a complaint with any of these government agencies or the Better Business Bureau, but prevention is always better. Investigations take time and there is no guarantee you can get your money back. “Even if an agency goes after a company, you may not be able to get your money back because that business may be long gone,” Gill said.

I recently discovered my 17-year-old son has been playing poker online for real money. Isn't that illegal? And who is liable for his losses?

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The legality of online poker for any age person is becoming a much more common question, according to Brian Weber, an attorney with Johns, Flaherty & Collins. 

"If you research this issue on the Internet, you will find a lot of debate over the answer," he said. "However, in Wisconsin, local district attorneys and the state attorney general's office have concluded that playing poker online is just as illegal - a misdemeanor under Wisconsin Statute - as it would be if a bet is made in person."

In terms of liability, there is no "line of credit" or debt that accumulates because an individual has to deposit money in an online account to play poker online. "If the losses were from funds that were sent by check or an automatic deposit from a bank account, your son would be responsible," Weber said.

While it may be possible to make a claim that those losses should be returned since your son was not of legal age to enter into a contract to play poker, it would be very difficult to pursue for a variety of reasons. "If the losses were on credit card transactions, you may be able to contest those charges based on your son not having the authority to make those charges," he said. "However, this is unlikely because most credit card companies do not accept charges from Internet gambling sites."

The bottom line is that anyone who places a bet in Wisconsin, whether in person or online, is guilty of a misdemeanor. "The liability for losses is a more complicated issue which should be discussed in more detail with a knowledgeable attorney," Weber said.

 

If I see an accident, I want to stop and help. My husband says not to because we might get sued. Isn't there such a thing as a Good Samaritan Law that protects me?      

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Your instincts to be a Good Samaritan are correct, according to Johns, Flaherty & Collins attorney Joe Veenstra. "Wisconsin has a law that says anyone who gives emergency care at the scene of an accident in good faith is immune from lawsuit." 

Wisconsin first passed a Good Samaritan law in 1963 that applied to health care workers. It was extended to the lay public in 1977 and has been unchanged since then.

However, the Wisconsin Supreme Court ruled in May 2006 that this protection applies only until the care of the individual can be turned over to medical professionals.

The case on which justices based that decision involved an ATV accident resulting in injuries to a young woman passenger and her boyfriend/ATV driver. Instead of providing care just until she could be evaluated by a professional, the boyfriend's mother monitored the woman in her home for six or seven hours. It was only at the end of that time, when the mother realized the woman was confused and disoriented, that she summoned professional help.

The woman, who suffered permanent injuries, sued the caregiver who had monitored her for those seven hours. The defendant claimed immunity under the Good Samaritan law, but the court said non-emergency care, which is not protected, began after the initial evaluation and assistance.

"The purpose of the Good Samaritan Law is to overcome the public's reluctance to get involved in a situation and provide help when prompt care is needed," Veenstra said. "If you see an accident or see someone injured in a basketball game, you can stop and help without worrying about being sued."

For more information about the Good Samaritan law, contact Joe Veenstra at 608-784-5678.

I was uninsured for a couple years and recently purchased illness and injury insurance. I didn’t require a physician’s care during the time I was uninsured but after obtaining insurance learned I needed gallbladder surgery. My insurance denied 100 percent of the claim as a pre-existing condition because the size of the gallstones indicated they had been developing prior to the time I purchased the coverage. I sent a complaint to the insurance commissioner in Madison, and they upheld the insurance company’s position. Do I have any other options to get the insurance company to pay?

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The answer depends on the specifics of your insurance policy, according to Brent Smith, an insurance attorney with Johns, Flaherty & Collins. "There are many different kinds of policies out there, but virtually all of them include an appeal process that spells out the options to which both the insurance company and the customer agreed," said Smith. 

If the deadline for appealing the decision to your insurance company has not passed, the next step is to contact a lawyer. An attorney can review the specifics of your case to see if you may have grounds for a lawsuit.

For more information about insurance, contact Brent Smith at 608-784-5678.

by Terence R. Collins, Attorney, Johns, Flaherty & Collins, SC

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If you have a mortgage on your home, your lender has probably required you to carry homeowner’s insurance. If you own your home outright, you’d be wise to follow lenders’ examples. For most people, their homes are the most valuable asset they will ever own; it just makes sense to protect it in case misfortune strikes.

Homeowner’s insurance is divided into two parts: casualty and liability. The casualty portion of your policy covers damage or destruction to your assets. It covers damages resulting from fires, wind and other weather elements, and a good policy will provide living expenses in the event you can’t live in your home.

The liability portion of your policy covers injuries that occur on your property. It’s especially valuable to homeowners because it imposes on the insurance company the duties to defend and indemnify you. That means that if someone sues you because he or she was injured on your property and wins, your insurance company must not only cover the costs to defend you, but it must also pay up to the limits of the liability.

Understanding the extent of your casualty and liability coverage and adjusting it to suit your needs is critical.

Casualty insurance, for example, typically does not cover floods, earthquakes and some other kinds of water damage, automobile-related matters and environmental issues. It also doesn’t cover theft or loss of jewelry, boats, antiques, high-tech equipment and other valuables without specific "riders," or add-in options.

Often the biggest regret policyholders have is that they didn’t purchase enough casualty coverage. Most policies will provide either for the fair market value of the structure and its contents or for the replacements costs. Homeowners need to regularly review this coverage, especially since their assets and the cost of materials fluctuate (and usually increase) often.

While an insurance company cannot promise to pay you more than replacement costs (which would make it a gambling contract), you do need to be sure your coverage reflects the current, actual replacement cost. Your insurance agent can view your home and assets and help you determine the appropriate level of coverage.

On the liability side, many policies provide $300,000 worth of coverage. That’s inadequate in today’s world. In fact, the average homeowner would likely fare best with something in the $1 million range.

That number may sound intimidating, but the additional coverage is surprisingly affordable. For example, someone paying $250 every six months for $300,000 in liability coverage may well be able to increase the coverage to $1 million for just $30 more. That’s because insurance companies make the bulk of their profits from the basic policies.

Liability insurance also has exclusions and particulars, so it’s worthwhile to know the specifics of your policy. One exclusion to note: liability insurance will not cover injuries resulting from an act committed by someone in your house if that person is not both a resident and a relative.

Additionally, most liability policies have a medical pay provision. This provision covers smaller medical bills unrelated to neglect or liability of the homeowner, such as someone who falls down the stairs. The medical pay provision will cover only the medical bills and no liability.

It’s important to note that claims will increase your premiums, so don’t make claims unless you must. If an insurance company pays a claim for you, they will adjust for it in the next premium.

Take that into consideration when determining your deductible. Obviously, the higher your deductible, the less expensive the premium, and vice versa. As a rule of thumb, a deductible of $500 makes good economic sense, but it’s best to look at your own circumstances and budget to determine what’s best for you.

Once you’ve settled on an insurance policy, it’s wise to take a video inventory of your home and its contents. It could serve as valuable evidence for future claims.

Most importantly, review your policy annually. It’s easy to forget about insurance until you really need it, and there’s no worse time to realize you don’t have enough.

 

by Brian G. Weber, Attorney, Johns, Flaherty & Collins, SC

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The housing boom of three to five years ago now has some homeowners going bust. According to reports in the La Crosse Tribune, foreclosures in La Crosse County through June this year were up nearly a third compared with the same period last year, and many experts are pointing to subprime and nontraditional loans for getting homeowners into more house than they could handle.

Subprime loans are those extended to borrowers who have less than optimal credit histories — histories that include delinquent payments, low credit scores, high debt-to-income ratios or incomplete credit histories. The increase in subprime loans came at the same time as a spike in nontraditional loans to accommodate those debtors, including interest-only and balloon mortgages.

Those interest-only mortgages were enticing at the time, as interest rates hovered around 4 percent. Today, however, rates are running around 6 percent, resulting in an approximate 50 percent increase in monthly payment amounts.

Homeowners caught in the squeeze have a few options.

• Refinance. Lenders would rather have their money back than your home. If you are having a difficult time making payments or have a balloon payment looming in the future, call your bank to refinance your loan or at least to work out a payment plan.
• Sell. While it’s not the best time to sell a home, several buyers are looking for bargains and downsizing is a lot better for your credit history than defaulting.
• Foreclose. With a foreclosure, you simply surrender your home to the lender, losing any equity that may have accumulated and seriously damaging your credit record. If you believe you are headed for foreclosure, you may want to pursue a deed in lieu of foreclosure where the lender allows you to give back your property and forgives the debt. While this too will negatively impact your credit record, it won’t be as damaging as foreclosure.
• Bankruptcy. Bankruptcy can help you to eliminate some of your debt, but it does not resolve mortgage financing issues, nor does it help if you are facing a balloon payment. Foreclosure may be a better alternative than bankruptcy, particularly if you will be unable to make payments in the future.

You can also ask about "loan modification." As an alternative to refinancing, some lenders will allow you to switch an adjustable rate mortgage to a fixed rate loan for a fee of a few hundred dollars.

If you have a good credit history, you may want to explore refinancing options with a few different lenders to see who can offer you the best package.

If you’re currently shopping for a new home and looking at different financing options, be sure to:

Think ahead. Realistically consider how long you plan to own your next home. If you will be in it for only a few years, nontraditional mortgages may make more sense. But if you plan to own it for a decade or more, traditional fixed-rate and standard adjustable rate mortgages are safer.

Stay in your budget. Just because you can afford the monthly payments right now does not mean you can afford the overall purchase. The most popular interest-only mortgages allow interest-only payments for the first five or ten years of the loan. After that time, the loan is amortized for the remainder of its term and payments increase. Also, financing for interest-only mortgages is typically slightly higher than for conventional loans.

Understand the terms. When deciding on a mortgage, read the terms carefully. Be sure to note if or when your mortgage may "negatively amortize" or be "re-cast." Both could indicate higher payments in the future.

For many people, a home is the biggest purchase they will ever make. It makes sense to shop around for the best short- and long-range terms and then do everything you can protect that investment. While big risks can bring big payoffs, they can also cause big problems if not carefully calculated.

Reprinted with permission from Holmen Courier and Onalaska Community Life, September 28, 2007.

I'm about to be named a director in a medium-sized company. Should I consider purchasing directors' and officers' liability insurance?In the business world following Enron, it's natural to worry about whether you are liable for what a company does while serving on its board, said Brent Smith, an attorney with Johns, Flaherty & Collins.

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The good news is Wisconsin offers immunity for most acts of directors while serving on boards of non-profits. "The idea is to encourage people to serve on the boards of non-profit organizations, where the great majority of directors are unpaid," said Smith, who is a busy volunteer on several state and local boards. 

In the case of for-profit companies, Smith said liability insurance is important. Prospective or current board members could ask the company to pay the premiums since they receive little or no stipend for their service.

"I assume a medium-sized company in La Crosse would have between 100 and 200 people. Oftentimes, the company purchases coverage for board members," Smith said.

The larger the company, the more compensation a director usually gets for serving on the board. Insurance premiums could be part of the compensation package for directors.

"We know there is more exposure and more risk with a large national company so the premiums are larger," Smith said.

Protection from liability, whether provided by state law for non-profits or through insurance in the case of for-profits, does not extend to willful or malicious acts. That means if you happen to overlook something, you may not be held liable for this negligence. But if you know something illegal is going on and ignore it, you could have some responsibility.

"It's like with homeowners insurance; you are covered if someone trips on your sidewalk because you didn't shovel your walk," Smith said, "but not if you hit someone across the head because you didn't like him."

For more information about insurance, contact Brent Smith at 608-784-5678.

by Brent P. Smith, Attorney, Johns, Flaherty & Collins, SC

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If you've recently received a letter from your insurance agent about changes to your auto insurance, you're not alone. And if you have questions about the choices you now need to make, you're in good company.

The letters are coming from insurance agents anxious to help clients comply with a new Wisconsin auto insurance law. The law was passed as part of the state budget package last summer and placed the onus for compliance on insurance companies. The insurance companies now are sending the letters to explain certain coverages now required and additional coverages being offered that you may opt out of.

Here's what comes next:

Exactly what changes does the law require?

Wisconsin Act 28 of 2009, referred to as the "Truth in Auto Insurance Law," requires all drivers to carry:

• Uninsured motorist protection with minimum coverage of $100,000 per person and $300,000 per accident. Previously, minimum coverage of $25,000 per person and $50,000 per accident was required.
• Underinsured motorist protection with minimum coverage of $100,000 per person and $300,000 per accident. The insurance was optional before with minimum limits of $50,000 per person and $100,000 per accident.
• Minimum medical payment coverage of $10,000. The previous minimum limit was $1,000. This no-fault insurance pays medical bills and/or funeral costs if a covered driver is injured or killed while in an insured vehicle. Consumers have the option to decline this coverage.

The law also requires insurance companies offer optional umbrella coverage. Umbrella policies are those purchased in addition to basic policies to cover damage extending beyond the limits of your basic coverage. That means that if you have an umbrella policy and you are involved in an accident, the basic policy would pay first. If damages extend beyond the limits of your basic insurance, the umbrella policy then kicks in to cover the overage.

Historically, umbrella policies have been used to cover the purchaser's liability, and there has been some question about whether they apply in accidents involving uninsured or underinsured motorists. Under the new law, coverage for uninsured and underinsured drivers is automatically included in umbrella policies unless you specifically reject it.

The law took effect in November 2009 and requires the new minimums be incorporated to all renewals occurring from that time forward.

Effective Jan. 1, 2010, drivers are also required to increase liability coverage with minimum limits of $50,000 per person, $100,000 per accident and $15,000 for property damage. Previous minimum limits were $25,000, $50,000 and $10,000, respectively. Insurance industry sources estimate four of five insured drivers already carry these new minimum amounts.

What does the new law mean for uninsured drivers?

Effective June 1, 2010, auto insurance will be mandatory for all drivers. Wisconsin currently has a "financial responsibility law" that assesses penalties for uninsured motorists only after they cause an accident. Under the new law, however, a $500 fine may be assessed to anyone driving without insurance, regardless of whether they've been involved in any accidents. With the change, Wisconsin leaves New Hampshire as the only state in nation not requiring auto insurance.

How will this affect my premium?

Costs will vary, depending on your driving history, the ages and types of vehicles covered, the experience of drivers on your policy and your choices regarding coverage. The best way to find out how the changes will affect your premium is to talk to your agent.

I've never had auto insurance before. Will it be difficult to get?

The new law prohibits insurance companies from placing drivers in high-risk categories merely because they have not previously carried insurance. Other high-risk factors, however, such as speeding citations, may still be considered.

I have more questions. Where can I call?

Consumers may call the Wisconsin insurance commissioner's office at 1-800-236-8517, but your best bet is to start with your own agent. Your agent can tell you how the changes apply to your specific policy and premium and help you understand the pros and cons of declining optional coverage.

 

by Michael L. Stoker, Attorney, Johns, Flaherty & Collins, SC
(Wisconsin Business Law: Intellectual Property and the Internet)

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When the Internet first began to shape popular culture more than a decade ago, few could have anticipated the astounding impact it would have on commerce, education and even social relationships. Unfortunately, the Internet’s ability to foster commerce and creativity often collides with preexisting laws that are not well-suited to this new medium. As its use and applications continue picking up speed, the courts and legislators responsible for developing Internet-related law must wonder if they will ever catch up. 

One area where this is readily apparent is intellectual property law, especially copyrights and trademarks. The law has been slow to adapt, many issues remain unaddressed and many of the laws out there are punitive. In this global, instantaneous network of human creativity, laws that are too restrictive or too punitive could jeopardize the intellectual wealth and dynamism that make the Internet what it is today.

As the law struggles to adapt, businesses (and individuals, for that matter) would be wise to follow the traditional tenets of intellectual property law — a field designed precisely to encourage individual entrepreneurship and creativity. Then, as the law adapts, so must Internet participants.

Essentially, intellectual property laws protect the rights one has when he or she creates something new. They can apply to the written word and visual arts, computer programs and manufacturing processes. In the United States, the laws have fostered creativity because people can make money — sometimes lots of money — from the new things they create.

Intellectual property encompasses

• copyrights (literary, musical, dramatic, choreographic, pictorial or graphic, audiovisual, or architectural work, or a sound recording);
• trademarks (words, names, symbols, devices or any combination thereof used to identify and distinguish goods or services of one company from those sold by others);
• patents (to protect new inventions, including devices, methods, processes or compositions of matter); and
• trade secrets (confidential business practices or information).

Currently, businesses that engage in online activities, whether merely promotional or fully interactive, find copyright and trademark laws to be most problematic.

Copyright infringement is perhaps the most pervasive problem on the Internet today when it comes to intellectual property. The World Wide Web is a huge engine of creativity, comprising millions of participants sharing information back and forth. Routinely, information is passed from one party to another and then another. Eventually, some 40 or 40,000 connections later, it can be difficult if not impossible to attribute the information to the original source.

To protect your company from copyright infringement, always do your best to attribute information acquired through other parties, including those on the Internet. Familiarize yourself with the protections offered by the "fair use" exception to copyright infringement.

If yours is a site that operates online bulletin boards, auctions, chat rooms and links to other Web sites, you’ll want to be familiar with the Digital Millennium Copyright Act (DMCA). Under the DMCA, your company is protected from copyright infringement on your site that stems from user-generated content so long as you inform users of your copyright-compliant policies and adhere to the notice and takedown procedures outlined in that law. (Specifics can be found at http://www.copyright.gov/legislation/dmca.pdf.)

Trademarks are especially tricky nowadays. It used to be that separate companies in Wisconsin and California could provide similar local services under similar business names or with like logos or slogans and never even know the other exists. Through the Internet, these companies can and do collide with surprising frequency. And one (or both, if a new player comes along) may be forced to change its corporate identity.

The general rule here is that whoever goes to the trouble to register the trademark first owns it. The advice to business owners: If you’re serious about your company name, logo or slogan, get it trademarked.

In addition, as tempting as it may be, business owners should resist the urge to include unrelated global or national brands in their Web site meta tags. This is a tactic many companies have used to draw traffic to their Web sites, attempting to capitalize on popular search terms — and the intellectual properties of other companies — to promote their own brand. But it’s seldom worth facing lawsuits from these deep-pocketed corporate giants. Keep in mind that if they’ve considered their brand important enough to invest millions of dollars in promoting it, they won’t hesitate to invest what’s needed to protect it.

Today, we know the Internet allows businesses to find information, get and share ideas, sell products, bond with other sellers and find good vendors. It’s an important, if not essential, place to be.

What we don’t know, however, is how social media will affect intellectual property law (and vice versa) or what new legal challenges await. In the meantime, all we have is traditional law, good legal advice and our own ethical sense to keep us on a somewhat safe footing.

Reprinted with permission from The Business News, July 2009.

I was called for jury duty and I don't want to go because I have a big deadline coming up at work. What should I do?                                                          

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The odds are you can delay your service on a jury by calling the county Clerk of Courts, according to attorney Peder Arneson. If you have a big project, a doctor's appointment or family vacation, you can defer service. 

Courts become less willing to delay your service a second time and, if there is a third, you may have to go before a judge to explain your need, according to Arneson. Only someone with a documented medical problem may be excused permanently from service. Occasionally, an individual is permanently excused for religious reasons, such as a Jehovah's Witness who believes he or she cannot sit in judgment of others.

Even if you are called to jury duty, it does not necessarily mean you will serve. Out of the pool, up to 20 jurors (depending on the type of case) are selected at a time by computer for questioning by the judge and lawyers. Any of them may be excused for a specific reason, such as knowing parties in the case or believing they cannot decide the case fairly because of a personal experience. Later, one of the lawyers may "strike" your name without giving you a reason. When individuals are eliminated, the computer picks replacements until a complete jury panel is selected.

Being called and questioned meets your jury service requirement, even if you are not selected. You will not be called again for at least four years. However, it is possible to be picked for several juries on that day. In that case, your service would end when you have completed those assignments.

Some people who are reluctant to serve on a jury find it worthwhile, according to Arneson. "Usually, it's a very good experience and they are glad they did it."

 

by Terence R. Collins, Attorney, Johns, Flaherty & Collins

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It’s exciting when your children head off to college for the first time. It signals a new era of learning, making new friends and, for most, living on their own.

When they find that first (or subsequent) apartment, however, they — and you — can be in for some surprises. Landlords are looking for someone to guarantee their leases, and they’re looking to the parents of student renters.

More and more, especially in cities with larger campuses, landlords are requesting parents guarantee their college children’s leases. It seems innocent enough, much like co-signing a loan with your child. But the consequences could be more financially significant than you think.

If you agree to guarantee the lease, you not only assume responsibility for your child but for all the other renters in the unit as well. That leaves you liable for any unpaid rent, including that of your child’s roommates, as well as for any damages to the apartment, regardless of whether or not your child had anything to do with causing them.

Depending on the value of the apartment, parents who guarantee such leases could be making themselves liable for significant damages.

The first step to avoiding these expenses is to understand what you’re signing. Landlords may include guarantees as part of the lease or as a separate agreement, so be sure to read all documents carefully before signing anything.

Second, avoid signing any guarantees if you can. If the landlord asks you to sign a guarantee, resist it. He or she may not push the issue. But be prepared for the landlord to say it’s a condition of the lease, meaning your child can’t live there without your guarantee.

Third, if you must sign a guarantee as a condition of the lease, restrict it to your child’s portion of the rent. For many landlords, this will be sufficient. Such a restriction can be handled with a simple amendment to the lease, using wording such as: "I hereby guarantee, only, my child's portion of the monthly rent not to exceed [insert a dollar amount] per month."

Finally, if the landlord will not accept your restricted guarantee, look for another apartment. Unless there’s something truly exceptional about the apartment where the landlord will accept nothing less than a full guarantee, and you can live with the prospect you may have to pay to rebuild it, you may be wise to look elsewhere.

Leases, and the guarantees that come with them, are fully binding legal documents, so as with any contract, it’s essential to understand what you and your child are signing. If you’re like most parents, you’ll probably decide that tuition alone is a big enough financial commitment for now.

Reprinted with permission from Holmen Courier and Onalaska Community Life, August 2005.

I bought a brand new car six months ago and have had to make one repair after another. Could my car qualify as a "lemon?

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You may choose to make lemonade if life hands you a lemon, but it's a bit more challenging to apply the quip if you think you are driving a lemon. 

Both Wisconsin and Minnesota have lemon laws covering new cars, trucks, motorcycles or motor homes purchased or leased in their respective states.

In Wisconsin, the vehicle must have developed its defect or defects during its first year and while still under warranty, according to Johns, Flaherty & Collins attorney Joe Veenstra. There is no statutory deadline for filing a lemon lawsuit; however, a claim should be submitted expeditiously.

In Minnesota, the vehicle has to be under original warranty and used at least 40 percent of the time for personal, family and household purposes. The first report of a defect must occur under warranty or within two years, whichever comes first. If problems continue with the same defect, the claim can be filed by the end of the third year.

"In both states, the defect must be substantial and the company must have failed to remedy it after four tries. The defect cannot be minor like an unexplained rattling, but something like repeated stalling would likely qualify," Veenstra said. "Or, you may be eligible with multiple defects that prevented you from using your vehicle for 30 or more days within a year."

If you think you have a lemon, keep records of the repairs. The dealer and/or manufacturer have the right to require arbitration before you can file a suit under the lemon law if the manufacturer participates in a certified program.

If your vehicle is determined to be a lemon, you may choose replacement or a refund, but a reasonable amount can be deducted for the miles you've driven, Veenstra said.

"To the consumer, any vehicle with problems seems like a lemon, but the defect generally must be substantial in order to qualify legally as a lemon," Veenstra said.

For more information about consumer law, contact Joe Veenstra at 608-784-5678.

On credit card owed, if they take a judgment, can they make me sell my property or only have a lien in case one day I do sell my property?

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Once a creditor has obtained a judgment for an unpaid debt, there are several collection methods available to the creditor, said Johns, Flaherty & Collins attorney Maureen Kinney. A creditor may garnish your paycheck or attach your checking or savings account at a bank or credit union. A creditor may also execute on the judgment, which is a legal proceeding to attach and sell property, including both real estate and personal property. 

If a creditor attempts to sell property, the debtor can assert rights to certain personal exemptions, much like bankruptcy. In Wisconsin, for example, a debtor is entitled to keep up to $40,000 of equity in personal residence. Each state has different limits as to what types of property are considered exempt or for how much, said Kinney.

As a practical matter, attempting to sell the property is not often beneficial because the proceeds are applied first to prior mortgages or back taxes on the property and only then are creditors paid. Frequently the creditor ends up having to purchase the property subject to all the back liens or taxes in order to realize any gain. Consequently, the creditor may get very little or nothing once those other liens are paid.

A judgment is a lien on the debtor’s property. It is often most effective for a creditor simply to have the lien continue in existence until either the debtor sells the property or the debtor wants to borrow money and needs to clean up his credit rating and pay outstanding judgments, said Kinney. Upon sale, particularly real estate, the debtor would have to pay the judgment lien from the closing proceeds.

For more information on collection law, contact Maureen Kinney at 608-784-5678.

After three years of marriage and racking up thousands of dollars of credit card debt, my husband left me. Even though the debts are in his name, creditors now are calling me to collect. What are my obligations?

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Unfortunately, under Wisconsin’s Marital Property Law, you are liable for that debt even if it was incurred by your spouse. Under the law, this debt is assumed to be "in the interest of the marriage" if it is incurred during the marriage. 

"I can go into a bank and get a line of credit," said Maureen Kinney, a Johns, Flaherty & Collins attorney whose practice includes family law. "I get the line of credit, but my husband and I are both responsible for it ultimately."

Banks are supposed to send out "tattle-tale" notices, informing the other spouse that a loan has been incurred, but that often occurs after the fact. The loan already has been made or a new credit card issued. "The law is based on the scenario that spouses are supposed to talk about any borrowing they do," Kinney said. "Marriage is a financial partnership."

Sometimes, of course, the talk is meaningless. "A lot of times the person incurring the debt says, ‘I will pay for it,’" she added. "But if they don’t pay, the creditors will come back after both spouses. It can affect your credit rating."

On the positive side of the marital property law, all property and assets acquired during a marriage are presumed to be marital property. That means all marital property belongs equally to both spouses, unless you’ve both signed an agreement that indicates something different.

Since the law presumes that debts were incurred for the benefit of the marriage, it is difficult to convince a judge that the debt is not your responsibility.

To protect yourself, Kinney said you should cancel all joint credit cards at the start of a divorce action so the other spouse cannot go out and use the available credit.

 

With today’s world events, I’m worried I’m going to get called to active duty, and I won’t have enough income to support my family. How can I protect my family from losing our home?              

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The United States has a tradition of protecting the financial interests of service men and women dating back to the Civil War, according to Edward Rue, a Johns, Flaherty & Collins attorney. 

"During the Civil War, there was a moratorium on all civil action against Union soldiers," he said. "That included protection from foreclosures, civil actions and divorce. Modern acts have not been as generous, but still offer protection."

The Soldiers and Sailors Civil Relief Act of 1940 has been in effect - with some amendments - since World War II. It provides protection for members of the armed services who have been "materially affected," meaning those who have significantly less income in the military than in civilian life. Under this law, you and/or your dependent family members have some additional rights.

For example, once you’ve given written notice to your creditors that you are on active duty, your interest rate on debts is limited to 6 percent while on active duty. This interest rate limit applies to mortgages and consumer debt, but not student loans, according to Rue.

The law also requires a creditor to get a court order to foreclose on you or a dependent family member, but you can delay a foreclosure for three months or longer, depending on the circumstances. You also have an extended period of redemption, which means you have a longer time after a foreclosure to reclaim the property by fully repaying the debt.

Other provisions apply to leased property. For example, if you pay less than $1,200 monthly rent, your landlord must go to court to get an eviction, which can be delayed for up to three months to give you more time to come up with the money or find alternative housing. The law also has provisions for getting released from a lease.

"This law doesn’t allow you to live rent free, but offers significant protections," Rue said. "If you have a legal problem, most posts have legal services available for members of the service, or a Johns, Flaherty & Collins attorney can help."

For more information about the Soldiers and Sailors Civil Relief Act, contact Johns, Flaherty & Collins at 608-784-5678.

I live in a mobile home park and the owner says he's going to kick me out if I don't make some updates to my home. I can't afford it right now, and I can't afford to move. Can I be forced to move?

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Part of the answer may be found in the written lease you signed to have your mobile home positioned in the mobile home park, according to Johns, Flaherty & Collins attorney Greg Bonney. 

"Mobile home parks must have a written lease agreement with attached rules and regulations," he said. "Typically, the rules and regulations contain guidelines for maintaining your mobile home and surrounding area. If the rules and regulations are violated, you could be required to leave the park."

If a mobile home presents a threat to the health or safety of its occupants or others in the park, state or local authorities could require the home be vacated. A lease could also be terminated if the physical appearance of the mobile home disrupts the rights of others to enjoy and use the park.

However, the law does not allow the owner of a mobile home park to require a new mobile home be purchased or discriminate against you solely because of the age of your mobile home or because the ownership or occupancy of the mobile home has changed.

Like any other landlord, a park owner or operator has the right to screen prospective tenants. If a mobile home is sold, the park owner could refuse to allow the mobile home to remain in the park if the prospective owner does not meet certain reasonable and lawful criteria.

For more information about landlord-tenant issues, contact Greg Bonney at 608-784-5678.

I recently got divorced and want to change my legal name back to my maiden name. What steps do I need to take?

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Changing your name back after a divorce is easier than you think, according to attorney Ellen Frantz, whose practice includes family law. 

During a divorce you can decide if you want to resume a former name," she said. "You just put it into the judgment paperwork that you will resume your former name."

While it usually applies to women who change their names after marriage – and divorce – the same rule applies to men. "It is a personal choice," Frantz said.

The actual change does not have to occur immediately. "Some decide to change right away and others wait until their children are grown," she said. You must notify Social Security, which will need a copy of your divorce judgment, to change your records.

If you decide after divorce that you want to go back to your birth name but did not have it in the judgment, Frantz said it may be possible to amend the divorce judgment to allow you to resume a former name.

If you choose to change your name for other reasons than marriage or divorce, you must go to court. You pay a court-filing fee, publish three legal notices in the newspaper and have a short hearing before a judge. If you want to change your name for reasons other than divorce or marriage but hold a professional license in Wisconsin (other than to teach in public schools) it is a little trickier. The licensing board must approve the name change to something other than what is on your license.

Children’s names also may be changed. If the child is under the age of 14, the change requires approval of both parents (or one if the other does not object after notice) or the surviving parent. If both are deceased or parental rights have been terminated, the petition to change the child’s name can be made by the legal guardian or a person with legal custody. After age 14, a child may decide for him or herself about a name change. No special requirements are needed to change a child’s name in an adoption situation as parental rights would have been terminated and the adopting parent(s) choose the new name for the child.

For more information, contact Ellen Frantz at 608-784-5678.

by Cheryl M. Gill, Attorney, Johns, Flaherty & Collins, SC                                   

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With lines like “Save the Internet” and “Join the fight for Internet Freedom,” the rhetoric surrounding network neutrality may lead some to believe their very basic freedoms of speech and information access are at stake. It doesn’t help that the other side comes back with threats of job losses and the end of innovation as we know it.

Essentially, the “net neutrality” movement seeks to prevent Internet service providers from blocking competitive content, charging for faster connections to certain sites and implementing other practices that would essentially create a pricing structure for web content, a pricing structure some have called “a pay-for-play platform.”

The Federal Communications Commission released new net neutrality rules late last year. The rules entered the Federal Register last month, and they are now scheduled to become effective Nov. 20. That is if lawsuits don’t block them. The rules, as written, leave both proponents and opponents dissatisfied.

Essentially, the net neutrality rules establish three protections:

• Fixed and mobile broadband providers must disclose the network management practices, performance characteristics and commercial terms of their broadband services.
• Fixed broadband providers may not block lawful content, applications, services or non-harmful devices; mobile broadband providers may not block lawful websites or block applications that compete with their voice or video telephone services.
• Fixed broadband providers may not unreasonably discriminate in transmitting lawful network traffic.

The problem for proponents is that the rules exempt too many parties, including Apple’s Store and Google’s Android Marketplace and especially mobile Internet—at a time when mobile broadband is growing faster than wireline Internet. The rules as written allow mobile ISPs to deliberately slow or block an Internet service when accessed from a smart phone. They also allow ISPs to charge extra for certain online services, such as Facebook, a practice proponents call discriminatory.

Opponents, on the other hand, say that this sort of government intervention is the first step toward losing the open web. Republicans like Senator Mitch McConnell (R-Kent.), who are already planning a repeal, further suggest that the rules will stifle innovation and lead to job losses. Rep. Mary Bono Mack (R-Calif.) went so far as to call it a “federal pat-down of the Internet.”

Opponents stand on solid ground when you look at the evolution of earlier technology. The airwaves of television were given to providers as long as they agreed to certain rules, and viewers didn’t have to pay a fee to see a broadcast. Then came basic cable and premium cable. People who wanted access to more options paid more at different tiers to get it. They still do.

In any case, proponents and opponents alike wonder whether the FCC has the power to enforce the rules. And where there’s no enforcement, there may as well be no rules.

The House of Representatives voted to overturn the rules in April, but experts don’t expect passage in the Democrat-controlled Senate, and President Obama said he would veto the legislation if it were to pass.

As for now, both sides have a point. Net neutrality proponents want a true information superhighway with no tolls. They worry that a tiered Internet controlled by phone and cable companies will allow those companies to determine which content users can access, allow wealthy corporations to prioritize their content over others who can’t afford to pay as much, and, ultimately, lead to an oligopoly.

Opponents meanwhile don’t want to make it easier for users to access competitors’ content. You can really blame Microsoft for not wanting customers using its service to access Google. And it’s understandable that Internet service providers want to charge more to customers who eat up bandwidth and drag down the speed of their services.

The problem is the issue, like so many others these days, has entered the political realm. That means decisions about it are far more likely to be based on ideology rather than practicality. It also means courts will likely be the ultimate decision makers.

by Cheryl M. Gill, Attorney, Johns, Flaherty & Collins, SC              

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If you're planning international travel this summer and are confused by whether you need a
passport, you're not alone. The gradual implementation of the Western Hemisphere Travel
Initiative has confused a lot of travelers.

For those of you looking at travel beyond U.S. borders this year, here are the basics.

Travel within United States and U.S. Territories

If you are a United States citizen traveling by air from the United States to any of the 50 United States and are age 19 or older, you will need government-issued photo identification, such as a driver's license, military ID or passport. The same rules apply when traveling to a United States territory or insular area American Samoa, Guam, Northern Marianas Islands, Puerto Rico or U.S. Virgin Islands.

Travel to Mexico

If you are an adult traveling from the United States to Mexico by land, sea or air, you will need a passport.

For children traveling to Mexico, the rules are slightly different. For air travel,
regardless of age, you will need a passport. Children under age 16 traveling by land or by sea can use their birth certificates, certificates of citizenship or naturalization certificates. Children under age 19 who are traveling with adult-chaperoned groups also may use birth certificates, certificates of citizenship or certificates of naturalization.

Travel to Canada

If you are an adult traveling from the United States to Canada by land, sea or air, you will need a passport, NEXUS or FAST card.

If you are taking a child to Canada by land or sea bring a birth certificate or other document that proves both custody and U.S. citizenship. For air travel, the child will need a passport.

Closed-Loop Cruises (Canada, Mexico, Caribbean)

If you are traveling from the United States to the Caribbean, Canada, Mexico via a
closed-loop cruise (meaning a cruise that begins and ends in the same U.S. port), you may use
either a passport or a government-issued photo ID and a birth certificate or certificate of
citizenship. Keep in mind, however, that if a cruise includes an overnight stay on land at a port
outside the U.S., you may need a passport.

Travel to Any Other Locale

For any other international travel, whether by air, sea or land, you'll need a passport for each
individual traveler.

Best Advice

If you travel outside the U.S., even if only to Canada and Mexico, a passport is a sure way to
avoid hassle. If, for example, an emergency necessitates air travel, you'll need that passport.
It's just the safest, easiest way to ensure entry back into the U.S.

To learn more about travel documents in general, see the Western Hemisphere Travel Initiative
guidelines. For information on applying for a passport, visit the U.S. State Department
online at http://travel.state.gov/passport/passport_1738.html.

Is there a law that after a retail item has been sold by a business and then goes on sale for a lesser price that the business has to refund the difference? If so, is there a time limit on this refund?

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We all like a bargain, even after the fact. While some stores will refund the difference if a product later goes on sale, it is to make customers happy rather than a law, according to Johns, Flaherty & Collins attorney Brian Weber. 

“Many stores have a policy where they refund the difference, but that is simply for public relations purposes,” Weber said. “The analogy is that you don't have to pay the difference if the price goes up either.”

While some stores will refund the difference, check out their policy before you buy. Often the opportunity has a short window like 14 to 30 days.

For more information about laws governing retail purchases, contact Brian Weber at 608-784-5678.

by Ellen M. Frantz, Attorney, Johns, Flaherty & Collins, SC
(Wisconsin Employment Lawyer — HIPAA Compliance)

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If you’ve been to a healthcare provider in the past six months, you’ve likely been handed new forms to complete — indicating you have read and understand the provider’s privacy policies. While the forms may seem unnecessary, especially after so many years without them, they represent an important step in safeguarding your privacy.

The forms are a result of a new law referred to as HIPAA, the Health Insurance Portability and Accountability Act of 1996. Despite its formal name, the law went into effect in April this year and essentially requires new safeguards to protect the security and confidentiality of health information.

HIPAA applies directly to healthcare providers, health plans, healthcare clearinghouses and pharmacies. It represents the first-ever federal privacy standards to protect patients' health information provided to health plans, doctors, hospitals and other healthcare providers, especially as electronic exchanges and transactions become more common.

Specifying rules about everything from sending faxes regarding a patient to posting medical charts outside exam room doors, the law aims to:

• Increase patient access to medical records.
• Provide patients with a notice of privacy practices (hence, all the new forms).
• Limit the non-consensual use and release of personal medical information.
• Restrict the use of patient information for marketing purposes.
• Ensure patient privacy while not impeding medical research.
• Require doctors, health plans and other covered entities to take reasonable steps to ensure patient communications are confidential.
• Establish new criminal and civil sanctions for improper use or disclosure, including civil penalties of $100 per violation and up to $25,000 for multiple violations; and criminal penalties up to $250,000 and/or 10 years in prison.

Obviously, the law impacts you as an individual, but it may also impact your business — even if you work outside the healthcare industry. If your business comes into contact with confidential medical information due to relationships you have with covered entities, you are considered a "Business Associate" and have obligations under the new law as well.

Business associates are bound to the same enforcement mechanisms as covered entities, and a business associate agreement formalizes that understanding. For a sample business associate agreement, visit the Department of Health and Human Services Web site at http://www.hhs.gov/ocr/hipaa/contractprov.html. Keep in mind that you should never rely completely on a model document or one drafted by others. Make sure your agreement is tailored to your particular situation.

Examples of business associates include billing and collection companies; transcription services; answering services; medical record storage companies; billing and practice management software vendors; outside legal services; record copying service vendors; temporary staffing agencies; transcription vendors; consultants and accountants who have access to protected healthcare information.

While the responsibility for obtaining the signed agreements belongs with the covered entity, corporate responsibility suggests that all entities working with individual medical information proactively pursue compliance with the new law.

Without doubt, HIPAA has required a lot of retooling and new paperwork, but with the transition nearly complete, the privacy law will bring peace of mind to many — including the covered entities who have successfully completed the transition and those protected by it.

Reprinted with permission from the River Valley Business Report, Fall 2003.

by Gifford M. Collins, Attorney, Johns, Flaherty & Collins, SC

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As the March 1 effective date for Google’s new privacy policy nears, increasing numbers of consumers are buzzing about how it will affect personal privacy online.

The news has been hard to miss. Anyone using the world’s most popular search engine has been exposed. Anyone with any kind of Google account — Gmail, Google Docs, Blogger, Google+, Android — sees a special box in a top corner alerting users of the change, even noting, “This stuff matters.”

You can’t say the 37-million-user-strong Internet juggernaut isn’t trying to be forthcoming about the changes.

With a couple exceptions such as Google Wallet that are subject to federal laws requiring specific privacy policies, Google is consolidating policies from most of its products into one policy that will apply to all.

That seems reasonable — even consumer-friendly — but consumer and watchdog groups disagree, saying Google has failed to address how these changes could affect consumers, not provided a way to opt out of the changes and violated a settlement Google made with the Federal Trade Commission last year.

That settlement resulted from complaints that Google combined and disclosed user data without user consent, especially surrounding Google’s quiet but automatic inclusion of Google Buzz — the company’s first attempt at a social network — in Gmail. Ultimately, Google Buzz failed in the controversy, and Google+ subsequently was born.

In the agreement with the FTC, Google promised not to share users’ information with third parties without first obtaining users’ explicit permission. Now, in less than two weeks, Google is both changing privacy policy —or policies — and doing so without an apparent option for consumers to opt out.

That’s the grounds for a lawsuit filed by the Electronic Privacy Information Center in Federal Court last week, not against Google for effecting the changes, but against the Federal Trade Commission for not enforcing the 2011 settlement.

Once again, online privacy issues head to court, where law lags far behind technological changes and where a conclusion could take months, even years, to reach. The term on which legality often rests is a “reasonable expectation of privacy,” which varies over time and along with life circumstances.

Consequently, one law developed to meet your expectation today may very well be different from one developed to meet your expectation next year.

The safe position is this: if you use Google, expect that your tracks can and will be followed. Expect that Google will use the information gathered to enhance your online experience. Expect that Google also will use this information for marketing purposes and to increase revenue, just as any other for-profit entity would. Finally, expect that anything you do online, such as search and postings, is immediately public.

If these expectations aren’t satisfactory, you do have options, even if they aren’t apparent or simple. The most obvious option is to choose not to use Google products and services. For many, though, this isn’t reasonable: Google has some excellent products that are free to end users.

If life without Google is untenable, do these two things: read the privacy policy for yourself and manage how your information is shared.

The privacy policy is reader-friendly, relatively brief and opens a world of controls for managing your privacy. The Google Dashboard, for instance, lets you see the data associated with your individual Google Account and provides links to control your personal settings for more than 20 products and services. You also can adjust your ad preferences, change how your profile appears online and remove information about yourself.

Additionally, Google offers an online Family Safety Center that informs and advises parents about issues concerning their children online, including cyber bullying and online predators. It also allows parents to control what their kids can see on YouTube and locks the safe search option.

Without your attention to settings, Google can mine a wealth of data from your online activities.

Google’s work to simplify the privacy policy across all products, communicate that policy to consumers and provide numerous user controls gives little reason to question its motives in making the changes. But understanding exactly how that information may be used adversely against consumers — even in ways Google may not intend — is another issue.

Reprinted with permission from the La Crosse Tribune, 2/19/12.

by Michael L. Stoker, Attorney, Johns, Flaherty & Collins

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In today’s consumer society, product recalls sometimes seem to be as commonplace as new product launches. In the United States alone, we have seen recent recalls of everything from tires and toys to coleslaw and peanut butter. With the vast number of consumer products in today’s marketplace, even a tiny percentage of recalls means there are literally dozens to track every month.

As a consumer, you play a key role in product safety. Despite federal safety standards for most products, all are subject to design flaws, quality control problems or tampering, so it is up to consumers to alert manufacturers and federal agencies to safety problems.

If a consumer product causes injury, illness or property damage, you have a number of options for reporting the problem and for legal redress. Depending on the severity of the problem, you can go directly to the company responsible for the product, the federal agency that oversees that category of product or to an attorney.

If you purchase a bicycle helmet, for example, and the strap falls off as you remove it from the box, you could write to the manufacturer and return it to the retailer. But if the strap comes loose on impact during a crash and you are severely injured as a result, it makes more sense to report the product to the Consumer Product Safety Commission and to discuss it with an attorney.

Product recalls and warnings protect consumers only if you react to them, but in most cases fewer than half of recalled products are returned for refund, replacement or repair.

A number of Web sites list product recalls. The Consumer Product Safety Commission’s (www.cpsc.org) is one of the most thorough and simple to navigate, but with the frequency and variety of products recalled, staying on top of them all could take hours per month.

Another way to keep abreast of recalls for the products you purchase is to complete and send in warranty cards. Be aware, however, that many companies will also use this for marketing information. It will also hold you strictly to the parameters of the warranties.

Perhaps the most practical method for consumers is to follow news reports. Wide recalls, especially those concerning products potentially most detrimental to your safety, are typically publicized through the media. They may also come with billing notices or on posters in stores, day care centers and doctors’ offices.

Recalls typically are carried out voluntarily by manufacturers. Otherwise, they are enforced by the federal regulatory body overseeing the product, such as the Food and Drug Administration for food or medicine or the National Highway Traffic Safety Administration for cars, trucks and automotive equipment.

The ways recalls are handled vary as much as the products themselves. Sometimes you may be offered a refund or replacement. Other times you will be instructed simply to throw the item away.

Whatever the case, take the recommended action. Doing so could protect your property and, more importantly, your safety.

Reprinted with permission from Holmen Courier and Onalaska Community Life, March 2007.

How do we put my mother's real estate in mine and my siblings’ names in a way that keeps it in the immediate family? We do not want spouses to gain ownership if one of us dies. Also, how can we legally make sure one of us won't force the other to buy out for at least 15 years?

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According to litigation attorney Terence Collins, a simple two-step process can resolve both ownership issues. The first step is to name the children as tenants in common, so each is an owner of the property. 

The second step is to develop and enter a buy-sell agreement between the property owners, or siblings in this case, that dictates what happens to the property upon any one owner’s death. The buy-sell agreement then will control what happens to the property against the claim of a spouse who may assert ownership.

Although it is very difficult to force anyone to sell his or her interest, that potential problem could also be covered in the buy-sell agreement.

 

Whether you rent or own your home, chances are at some point you will encounter a problem with a neighbor. Noise and boundary issues are among the most common, but neighbor complaints can run the gamut from unpleasant odors and mosquito-infested bird baths to dilapidated fences and fierce pets. Whatever the case, nuisance laws provide your best shot at continuing to enjoy both your property and your neighbors.   Nuisance laws are designed to protect your right of enjoyment and include both public and private actions. As the name suggests, public nuisances are those that interfere with the reasonable expectations and rights of the general public. Examples include violating noise ordinances, failing to remove ice or snow from sidewalks, setting off fireworks in the streets and harboring vicious dogs.Private nuisances, on the other hand, refer to those that impact only one individual or a very small group of people. Private nuisances may include unkempt dog kennels or loud televisions or stereos.If you believe one of your neighbors is a nuisance, these steps can help you solve your problem, often with neighborly good will still intact.                                                        

First, remember the golden rule. If your actions are offending a neighbor, you would likely prefer they simply mention it to you rather than calling the police or immediately filing a lawsuit. Be the kind of neighbor you’d like to have and before trying anything else, simply approach the person about the issue in a friendly way.

If the neighbor does not respond well or at all to your concerns, consider talking to other nearby neighbors who may be experiencing the same nuisance. Ask them about their experiences and discuss your options and how you may proceed together.

A polite but firm letter is a good next step. The more neighbors who sign it, the more compelling it will be to the recipient. You can make it even stronger if the offending neighbor is in violation of condominium, homeowners’ association or planned subdivision rules.

If the offending party still does not respond, you have a number of options:

• If the nuisance violates local ordinances, call the police who will investigate and may pursue criminal charges.
• If the nuisance violates planning or zoning regulations, file a complaint with city or county officials. The result could be a notice of violation and citation.
• If you believe the annoyance meets the legal definition of a nuisance, and other, lesser efforts have failed, consult with an attorney. An experienced real estate attorney can help you explore your options, determine whether the issue qualifies as a nuisance and advise you of legal remedies, such as small claims court or a formal injunction to stop the behavior.

Nuisance actions are often sent to mediation. Whether in mediation or in court, several factors will be considered, including the location of the annoyance, applicable zoning restrictions and whether the situation qualifies as an actual — not potential or future — nuisance. In the end, courts and/or mediators will consider the interests of both parties and seek a balance that will minimize the negative impact to both parties.

Whatever the nuisance, remember you could be neighbors for a very long time. The best resolution is one which limits the nuisance without limiting friendly relations.

Reprinted with permission from Holmen Courier and Onalaska Community Life, October 12, 2007.

I own a small, growing business and would like to use a famous Da Vinci painting in an upcoming advertising campaign. Do I need some sort of permission, and if so, where do I get it?

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Perhaps Renaissance painter/sculptor Leonardo Da Vinci anticipated this question when he said long ago, "Art is never finished, only abandoned." 

Does that statement mean he has abandoned all rights to the Mona Lisa, The Last Supper or another of his works so you can use it in your advertising?

Whenever possible, said attorney Joe Veenstra, “You should always seek permission from the source of the material you intend to use.”

However, Da Vinci, who lived from 1452 to 1519, is not around to give his approval. If you are using a version of Da Vinci’s art from the Internet or some other source, you should seek permission from the producer of the copied artwork if possible.

Although there was no copyright law at the time he painted the Mona Lisa, if he had produced the Mona Lisa today, the copyright protection would expire 70 years after the artist’s death. It then is in the public domain. Veenstra also notes that when a painting is created in another country, the law may be different, though the U.S. does have agreements providing reciprocal protections with many countries.

There can also be complications when you are working with reproductions. That was true in one interesting court case that occurred in 1999. Bridgeman Art Library, a British company, sued Corel Corp. for selling a CD compilation of fine art in the public domain. The library, which sells color transparencies of “museum-quality reproductions” of the same artwork, claimed it held the copyright. The U.S. court held that the library was not entitled to copyright protection because it had made “slavish” copies. It could not hold a copyright for exact reproductions.

What might have made the British art library’s transparencies copyrightable? If the reproductions had not been slavish, but instead were modified to create new takes on the old masters, the library’s transparencies might be protected.

Somewhat ironically, a minor, yet arguably creative modification can provide copyright protection to the person modifying the original artwork.

For more information on copyright law, contact Joe Veenstra at 608-784-5678.

I have a backyard trampoline and I’m concerned about my children’s friends falling off and getting hurt. Am I responsible if they are injured?

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Wisconsin's "recreational immunity" statute should provide protection if someone is hurt while participating in recreational activities on your property, according to Michael Stoker, an attorney with Johns, Flaherty & Collins. 

The law, passed in 1963, protects property owners from lawsuits for outdoor activities for "exercise, relaxation or pleasure, including practice or instruction."

"This statute means people on your property engaged in a recreational activity can't sue you for the injury or damages they sustain," Stoker said.

The law, which applies to government and nonprofit or private landowners, does not provide immunity:

• To owners who receive more than $2,000 a year from admissions or other fees.
• For malicious acts or maliciously failing to warn others of dangerous conditions.

The law does not apply in all cases. Consider a recent, local example. Two lawsuits arose from a tragic death in 1997 of an 11-year-old boy in a Paper Recycling warehouse fire in La Crosse. His two friends escaped.

The insurance company of the warehouse owners sued Paper Recycling, as did the boy's mother in a separate lawsuit. Paper Recycling claimed recreational immunity. Two lower court judges disagreed about whether the boys' activities fit the definition of recreation. They did not have permission to be in the warehouse and one of the boys was later found to be delinquent for playing with matches.

In June 2001, the Wisconsin Supreme Court ruled that Paper Recycling was not entitled to recreational immunity in either lawsuit. In a 5 to 2 vote, the justices said the boys were not involved in a recreational activity when they lit the fires.

Wisconsin also has a "recreational activities" statute limiting the right of a participant in organized sports to sue for injury. This law holds that individuals accept inherent dangers when they participate in public recreational activities.

"When you play softball or flag football in a city league, the law holds that you know, and have accepted, the risks involved in the activity and that you know the rules," Stoker said.

For more information on liability issues in Wisconsin, contact Michael Stoker at 608-784-5678.

My family is planning to fly cross-country for vacation this year, and we'll be renting a car in our destination city. What should we do about car insurance on the rental?

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Standing at the car rental counter after a long flight with tired and hungry kids is not the best time to wonder whether you need additional insurance to cover a rental car. 

You might significantly add to the rental cost for something you already have, according to Johns, Flaherty & Collins attorney Brian Weber.

"In most instances, your own car insurance provides coverage, subject to your policy's terms and conditions. Most policies say you have coverage for any temporary use of a passenger vehicle," he said.

All policies offer liability for injuries to another party, but if you've dropped comprehensive and collision on an older car, you need to buy additional coverage for the rental. Also, your car insurance usually does not cover a truck from U-Haul or a similar rental.

Also, be honest about who will drive. Your 16-year-old may have a license, but rental car companies charge significantly more for young drivers and many don't allow them at all. If that driver is not listed when you rent the car, your insurance may not cover an accident.

Many credit cards automatically provide coverage for a rental if you use that card to rent the car. Read the fine print to learn whether that policy includes the contents of the vehicle and which drivers are covered.

Make sure your insurance policy also includes uninsured and underinsured coverage in case the other driver in an accident is not properly insured. That advice applies to your personal car as well, Weber said.

Also, check with your agent about special needs associated with driving in another country, including Canada, which requires you to carry an insurance card.

"Any time you have a new situation, it is a good idea to review your policy to make sure you are adequately covered," Weber said.

For more information about insurance, contact Brian Weber at 608-784-5678.

What rights do I have as a tenant living in a residence with black mold in the walls?

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You have the right to request the landlord address the problem, according to attorney Joe Veenstra who concentrates in landlord-tenant and consumer rights issues. 

"Your first step is to complain in writing to the landlord. If that doesn’t help, and mold persists, you can call the city or county inspector who will come and look at the problem," said Veenstra.

In most cases, Veenstra said, the inspector will order the landlord to alleviate the water problem. Generally, if the landlord does not respond, you have good cause to give him or her written notice they are defaulting on the lease and you intend to vacate. "It’s important to understand that the leval, toxicity and locations of the mold will have some bearing. The inspector can help determine the extent of the problem."

For more information on landlord-tenant law, see The Wisconsin Way: A Guide for Landlord and Tenants or contact Joe Veenstra at 608-784-5678

Is there a law that after a retail item has been sold by a business and then goes on sale for a lesser price that the business has to refund the difference? If so, is there a time limit on this refund?             

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We all like a bargain, even after the fact. While some stores will refund the difference if a product later goes on sale, it is to make customers happy rather than a law, according to Johns & Flaherty attorney Brian Weber.

“Many stores have a policy where they refund the difference, but that is simply for public relations purposes,” Weber said. “The analogy is that you don't have to pay the difference if the price goes up either.”

While some stores will refund the difference, check out their policy before you buy. Often the opportunity has a short window like 14 to 30 days.

by Brian G. Weber, Attorney, Johns, Flaherty & Collins, SC                        

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Based on recent buying trends, it would appear many people this year are dreaming of an iChristmas. Apple’s small wonders — iPods, iPads and the new iPhone 4S — seem to be capturing the attention of an increasingly broadening audience, finding their way onto wish lists for young, old and everyone between.

As with every year’s toy safety guide, however, we recommend you enter the holiday shopping season with an array of caveat emptor warnings. If you’re planning to give one of these gadgets this year, you’ll want to be sure to take precautions to ensure it doesn’t turn into a headache, figuratively and somewhat literally.

Our best advice for parents who are giving these gifts is to establish ground rules before your child ever begins using them, and make those rules a condition of continued use.

This is important for two reasons. First, a study from Kaiser Family Foundation found that eight- to 18-year-olds today devote an average of 7.5 hours a day with entertainment media, such as texting, tablets and gaming.

Second, the number of gadget-related injuries, not surprisingly, is also increasing. A study from the UK found a 70 percent increase in patients seeking medical attention for pain related to gadget gifts during last holiday season.

To help your child or teen enjoy the best of your technology gifts this season, here’s what you need to know.

Repetitive Motion Injuries

As with other electronic toys and gadgets, smart phones, MP3 players and tablet computers often lead to repetitive motion injuries, or RMIs. Ever heard of Blackberry Thumb, iPhone Finger or texting tendonitis? Yeah, there’s a reason for that. Even the scroll wheel on the most basic iPods has been known to result in RMIs.

If you think your child is too young to get texting tendonitis, consider this, about 75 percent of 12- to 17-year-olds in the U.S. now own a cell phone; half of them send 50 or more text messages a day and a third send more than 100 texts daily.

Precaution: To help your child or teen avoid RMIs, limit the number of texts or emails they can send from their phone in a day, or even per hour. If kids they really to reach someone, they can always do it the old-fashioned way and dial instead.

Eye Strain

A study released this summer indicates that most iPhone users hold their phone too close to their eyes, and the result over time is dulled vision, not to mention headaches. Researchers now are exploring whether people using Kindles or iPads have the same tendency and resulting difficulties.

Precaution: Train and monitor your child or teen to be sure he or she holds the device at least 16 inches from eyes (even two inches can make a difference). If you see your child squinting or holding the device closer, take him or her to an eye exam. It may be that your child simply needs simple magnification lenses when using the device.

In addition, you may want to require your child use the device only in well-lit areas and take breaks every 20 minutes. Eye strain timer apps are now available; you can preload and set one before giving the device.

Of course, this is all good advice for Mom and Dad, too.

Hearing

Repeated studies have found that teens, especially, are unaware of how loud their music really is. Many of them mistakenly assume that factory setting are already set to safe limits. In fact, about 80 percent of capacity is as high as one can go before damaging hearing, and 70 percent is even safer, especially for people who listen for long periods of time.

Precaution: Many new models today come with options to lower the maximum volume limit. Look for those models and adjust the maximum limit before you give the gift.

Sleep Disturbances

One might think that it doesn’t matter whether you’re reading your bedtime book via Kindle, iPad or good, old-fashioned paper, but it does when it comes to sleep disturbances. That’s because the light shining directly into your retina inhibits the secretion of melatonin, a naturally occurring hormone that regulates sleep. Light from tablet computers, smart phones, iPods and TV can all affect melatonin and postpone sleep. (Some experts say e-reader devices such as Nook and Kindle are less problematic because do not emit the same light.)

Precaution: The best way to avoid sleep disturbances is to turn off the devices at least one hour before bedtime.

Harmful Content

In addition to the potential physical problems above, children may also be inadvertently exposed to harmful content — whether through inappropriate lyrics or social apps.

Precaution: In addition to setting any pre-loaded browsers to safe search mode, parents should establish and keep secret device passwords for downloading content. On iPods, iPhones and iPads, this means your child cannot even download a song, much less an app, without your advance knowledge and approval. An added bonus: it means they can’t run up iTunes charges on your credit card.

All these potential problems and precautions can be generalized to other electronic gifts this season as well. Toy industry experts are predicting a strong season for e-toys geared to a much younger set, such as LeapFrog Leapster and Leap Pad, the Fisher Price iXL and Nintendo 3DS. By instilling these limitations and rules early, you could help your own small wonder establish healthy gadget habits that will help them for years to come.

by Michael L. Stoker, Attorney, Johns, Flaherty & Collins

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It happens every year at this time, but still it somehow manages to sneak up on us. Yes, it’s holiday shopping season again, and it’s time for an annual reminder of how to make smart choices for your kids.

If your child is among the one-out-of-two or your teen among the four-out-of-five kids playing online games today, we have a whole new set of guidelines for you this year—especially as game developers have introduced some new top draws.

Microsoft's Kinect for the XBox 360, a motion-controlled video game (much like Wii sans the controller), for example, is expected to be a top seller as is the new Sony PlayStation Move bundle. Industry watchers are also predicting strong sales for Halo: Reach (a game that’s best left to adults), Wii Party, Fallout: New Vegas, Rock Band 3 and a handful of others.

Online Gaming 2010, a research report from the NPD Group, indicates the average gamer spends eight hours a week in online game play, an increase of about 20 minutes per week over 2009. That’s a lot of time spent gaming—and a lot of opportunity for danger.

Injuries

The danger comes in two varieties. The first is injury, primarily from repetitive motion. In fact, computer gaming systems come with warnings, advising players to be cognizant of eye strain and orthopedic injuries. To safeguard against those:

• Make sure your child takes at least a 15-minute break every hour.
• Attend to any complaints of sore joints or muscles after your children play. These can be early warning signs of developing repetitive injuries. Insist your child suspend play for a few days and then tighten limits on the amount of time they’re allow to spend.
• One more hazard to watch is seizures. They’re rare—only about one in 4,000 players has them—but if your child has ever had a seizure or loss of consciousness, be especially watchful.

If, despite your efforts, your child does sustain a significant injury, consult a lawyer about a potential tort claim. Some parents may resist, thinking the legal system may fail them or blaming themselves for giving the game or device to the child. But as we say every year, the threat of punishment can be a powerful deterrent to manufacturers inclined to take safety-compromising shortcuts.

Privacy and Overall Safety

The second form of danger focuses more on your child’s privacy, emotional well-being and stranger danger. These tips can help.

• Do your homework. While the games have rating systems—and it’s important to understand them—it’s even more important to go a step further and weigh whether they are appropriate for your child and your family values. A number of online parent websites give good feedback, many of which may share your values. Common Sense Media’s site is a good starting point. If you’re going to spend $50 on a game, you want to know what your child will be learning and doing with it.
• Establish the rules before your child plays. At a minimum, you’ll want to set time limits, but many families also develop rules about whom their kids may play with, stranger chat and especially sharing personal information (name, age, school, address, e-mail address, etc.). Some families have even developed contracts with their children that outline the rules and the consequences for violating them.
• Avoid voice chat. Some gaming systems have live chat capabilities. While programs are available to make your child’s voice sound older, they’re also available to make adults’ voices sound younger. Your best bet is to limit live chat to just the people your child and you know.
• Take full advantage of built-in guards and reporting systems. Most systems allow you to block and/or report players who use offensive language or engage in cyberbullying. You’ll want to know about those systems before your child plays.
• Monitor play. Just as you need to monitor to avoid physical injury, you need to monitor to avoid other dangers, too. This begins with keeping online gaming systems in open family areas of your home (not bedrooms). Watch to be sure your child is following the rules you established up front, taking appropriate breaks and playing games that conform to your values.

It takes extra time and effort to safeguard your child when it comes to online gaming. But doing so substantially increases the odds that the gaming experience will be a fun, positive one for your child. Remember, you are the final line of defense when it comes to your child’s well-being.

 

by Michael L. Stoker, Attorney, Johns, Flaherty & Collins

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It’s supposed to be the most wonderful time of the year, but if you inadvertently give a child an unsafe toy this holiday season, it could become the most dreadful.

Each year, the U.S. Consumer Product Safety Commission reports more than 200,000 toy-related injuries. In addition to all the choking, lacerations, bruising, abrasions and other injuries treated in emergency rooms around the country, countless children have also been exposed to dangerous lead and phthalate levels in toys.

Phthalate chemicals are used as softening agents in toys and teethers. Exposure can cause developmental abnormalities. Lead is often found in paint used on toys and in jewelry and is toxic when breathed in or eaten by humans. Exposure to unsafe levels of lead can cause permanent central nervous system damage and lead to developmental delays and behavioral problems in children. It can also lead to kidney disease, seizures and even coma

Consumer Product Safety Improvement Act

Toy safety has been legislated since 1970, but in the wake of several high-profile children’s product recalls related to dangerous lead levels and magnetic toys, Congress passed the Consumer Product Safety Improvement Act to clamp down on product safety failures. Safety and parent advocates alike hope the act, which went into effect in 2009, will safeguard American children against those dangers in the future.

In addition to lowering permissible limits for phthalate and lead chemicals, the act

• clarifies and provides direct enforcement authority to the Consumer Product Safety Commission;
• requires pre-market testing for all new products entering the marketplace; and
• empowers the CPSC to recall and quarantine products and impose hefty financial penalties for manufacturers who don’t comply.

Parents: the final line of defense

While federal regulators have vowed to enforce the act, parents are the most important safeguard of toy safety. Before handing a new toy over to a child, parents should check for logos indicating that the product has been tested and approved through the CPSC process. Parents must also ensure that a toy is "age appropriate" for the child.

Because of the variety of toys and accompanying hazards, concerned parents may also wish to take additional steps to assure toy safety. Organizations such as SafeKids and U.S. PIRG (Public Interest Research Group) offer helpful, practical tips and free shopping guides on their Web sites.

It’s also a good idea to check your child’s toy box on a regular basis for any toys that may be broken or have otherwise become unsafe. And the best advice of all is to play with toys yourself before giving them to your child. Play rough with them the way your child might. Testing toys firsthand for durability and safety will increase your confidence in giving them to your child.

Responding to toy safety problems

Once a toy is purchased, it doesn’t hurt to check out the store bulletin boards where you shop. Most stores that sell toys will post product recall notices for their customers. If you find a product you own has been recalled, immediately stop using the product and follow the recall instructions regarding disposal or reimbursement.

If, despite your best efforts, you end up with an unsafe toy, return it to the retailer and ask what it will do. Some will take care of it on the spot; others will send you back to the manufacturer. If you go to the manufacturer, send a letter explaining the hazards and requesting a reimbursement along with a photo of the problem.

For significant hazards, report them to the CPSC or a consumer advocacy group that deals with toy safety. They need to know when consumers have a problem because once they amass enough complaints involving a single manufacturer or a specific type of toy they can act on it. By reporting these problems, you’ll be helping other parents buying similar products.

In cases where substantial injury or death occurs, consult a lawyer about a potential tort claim. Some parents may resist, thinking the legal system may fail them or blaming themselves for giving the toy to the child. But the threat of punishment can be a powerful deterrent to manufacturers inclined to take safety-compromising shortcuts.

Taking time to become informed about potentially hazardous products can be well worth the effort. It’s your best assurance that the toy intended to bring smiles to your child’s face does just that — and makes it possible for that smile to stick around for many seasons to come.

 

Can a public school prevent a parent from entering school grounds when the parent has a child attending that school?

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In the absence of a court order prohibiting a parent from coming on school grounds or having contact with his or her child, schools generally allow parents to visit during the day if they have a proper purpose, according to attorney Cheryl Gill. However, schools do have the right to establish rules about who can and cannot come onto school grounds, particularly as needed to secure the safety of the students and school system. 

 

by Brian Weber, Attorney, Johns, Flaherty & Collins, SC

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The end of the school year marks the beginning of summer sitter season. If you're among the
many families looking for someone to watch your children, we have several screening options
to help. You may find some don't seem necessary in your situation. Choose those that will
give you the most peace of mind.

Interview prospects. After you've identified some good prospects, the first step in screening is
the interview. Use the interview to learn more about qualifications, experience, motivations
and philosophies as well as to get a sense for how the person may interact with your family.
Some questions to consider include:

• What is your philosophy about discipline?
• Do you have children of your own? Do you have younger siblings?
• Why do you do this work?
• Have you ever been in an emergency situation while babysitting? Have you ever been in
  any emergency situation?
• What is your opinion of drugs and alcohol?
• Who is your best friend and how would you describe your friendship?
• Can you give me some examples of problems you have had with kids and how you handled
  them?
• Can you swim? Would you be willing to go in the pool with our child?
• Do you know CPR?

Verify identity. At the interview, ask to see their driver's license. Then be sure to confirm their
address, check their school history and verify other details about them. Legally, you will be
required to report payments to your sitter on your taxes, so you'll need a Social Security
Number, too. With a Social Security Number, you can conduct a full background check.

Check personal and professional references. Ask for references and be sure to check them.
For personal references, you can talk with family members, friends, teachers, clergy or former
employers from other types of jobs. If the person you're interviewing has done this type of
work before, ask, too, for professional references and talk with parents who have hired them in
the past.

Search public records databases. Several free public databases can reveal whether a candidate
who is age 18 or older is involved in litigation, has a criminal record or is a sex offender. CCAP
(Consolidated Court Automation Programs) provides Wisconsin court records, and national and state sex offenders databases list convicted sex offenders. Of course, these only work if you've followed step two and verified identity.

Check driving record. If your summer sitter will be driving your children anywhere, it's wise to
verify that he or she is a safe driver and carries appropriate auto insurance coverage. In order
to check a driving record, you'll need to complete a Vehicle/Driver Record Information Request form and have the candidate sign the authorization area. For insurance coverage, you can simply request a copy of their policy.

Review credit report. This is going further than some care to go. Others, though, may have a
hard time trusting someone who has major financial problems in their home.

Conduct a drug screening. If you have some reason to be concerned about drug use, you may
request a prospective sitter to have a drug screening. For more information on screening in
southwestern Wisconsin, contact Coulee Drug Testing.

Check additional resources. If you're looking at hiring a state licensed provider, the state will
have a record of any past issues with that person. And if you're hiring through a matchmaking
or nanny service or hiring a private day care provider, request a review of their policies to be
sure they align with your own philosophies.

For example, when reviewing their health/sanitary policies checklist, consider:

• What are the policies regarding excluding kids and staff members for illness?
• When can kids come back after being home sick?
• Is there a separate room for kids who have colds, other mild infections?
• Do kids need to have up-to-date immunizations to attend?
• Do kids need a physical by a doctor before enrolling?
• Are health records kept by the center?
• What are the hand washing rules for staff?
• What are the hand washing rules for kids?
• How are toys, sleep mats, play surfaces and diaper changing areas cleaned, and how
  often?
• How many kids are in the center each day, what are their ages, are potty-trained kids in
  contact with kids who are not potty trained, and what is the ratio of staff to kids?

As you consider where to look for a summer sitter and how to screen, think about what
matters most to your family. Safety will probably be number one, and fun will probably find its
way to your top five. Finding someone who loves kids and passes some combination of these
screening tips is your best bet for making sure both your kids and you have a great summer.

by Joseph G. Veenstra, Attorney, Johns, Flaherty & Collins                                             

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Small claims court can be a great resource for ordinary people seeking civil justice. It’s quicker and less expensive than the usual court process, yet still yields legally enforceable judgments.

If you’re thinking small claims court may be the right course for you to resolve a dispute, it’s important that you understand how it really works. You can read the guidelines for your local county, but here are five fallacies, commonly held, that they probably won’t describe.

Fallacy #1—It’s not serious. Small claims court has strict requirements. If you don’t follow the guidelines, you could lose your case or have it thrown out. Further, judgments from small claims court are just as enforceable as those from traditional civil courts.

Fallacy #2—You don’t need a lawyer. Even if you don’t need a lawyer for trial—and you may not—lawyers can be very helpful to consult when you’re preparing your case. They can review the facts and your materials to be sure it’s something you can handle on your own, and they may be able to identify legal issues that you may not be aware of but that may help or hinder your case.

Fallacy #3—The trial is merely a chance to tell a story. In addition to telling your story, you need to provide documentation of your claims or defenses, just as in a traditional civil courtroom. You may also need to subpoena witnesses who support your case and make it credible.

Fallacy #4—The disputed amount must be $5,000 or less to qualify as a small claim. Though the limit for small claims court in Wisconsin is $5,000, that limit actually applies to the limit on the judgment you can win. Your disputed amount may be higher than $5,000, but when you consider the length of time and expected expense of a traditional civil action, you may choose small claims court and the lesser judgment. Small claims actions are usually resolved within six weeks of the filing date. Traditional civil actions often take a year.

Small claims court may also be a wise course if you think you may be liable for some percent (less than 50) of the claim, such as with a car accident where you sustain something like $7,000 worth of damages and the other party $1,000 and both of you are cited.

In some cases, including landlord-tenant disputes, courts will allow “fee shifting.” With fee shifting, courts can add attorneys’, filing, service and statutory fees to the judgment, thereby potentially surpassing the $5,000 limit. Generally, fee shifting is allowed in any dispute that falls under unfair trade practices.

Fallacy #5— The judge will berate the losing party. You won’t find Judge Judy in local small claims courts, and the judge you do find likely won’t give either party a sense of being dishonored by the outcome. In fact, judges actively encourage people to resolve their disputes and normally handle cases with decorum and a spirit of reconciliation.

by Joseph G. Veenstra, Attorney, Johns, Flaherty & Collins

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Whether for a minor fender-bender, a bad check or dissatisfaction with a transaction, people seeking legal redress for issues involving $5,000 or less can find it in small claims court. But don’t expect Judge Judy. Small claims courts are far less dramatic and much more focused on the facts.

The small claims court process begins with the filing of a small claims summons and complaint with the clerk of courts. The filing fee is $85, and, depending on the county you are in, the clerk can often serve the defendant by mail for $2. You can also hire the sheriff’s office to serve the lawsuit upon the defendant for a variable fee.

If you win your case, the defendant may have to pay some of your costs, but it’s wise to consider the fees before filing a complaint. If you have a claim for $100, for example, it’s likely not worth the filing fee.

When you file a summons and complaint, the clerk will issue a "return date." That’s the date of your first appearance in the court. In most counties, if you do not appear that day, your matter will be dismissed. If the defendant resides in La Crosse County, is not on active military duty and does not appear, you will receive a default judgment. Defendants outside La Crosse County may file an answer with the court by that date as an alternative to appearing in person.

If both parties appear on the return date and no lawyers are involved or if you have a landlord-tenant dispute, you will be scheduled for mediation with a La Crosse County law clerk, which usually occurs right after the return date.

You should prepare for mediation by bringing any relevant documents with you. Photos, invoices and other documents can help persuade the mediator in your favor, as can a succinct explanation of all the facts and the law that supports your position. Many cases — between 80 and 90 percent — are resolved successfully in mediation.

If your matter is not resolved in mediation, you will be given a trial date. In that instance, the defendant must file an answer by a date specified by the court. Failure to do so will result in a default judgment.

Small claims trials are relatively informal hearings. You’ll have about 20 to 30 minutes to present your case. If you think you’ll need more, alert the court beforehand. During the hearing, the judge will hear sworn testimony and review evidence. If your witnesses will not come voluntarily, you will need to subpoena them in advance and pay each $16 plus mileage and any sheriff’s fees involved.

The judge often will rule orally once the evidence is concluded. If you win a judgment, the other party must complete a financial disclosure; their failure to do so could result in contempt of court and potential jail time until the disclosure is completed. Note that winning a judgment does not necessarily mean you’ll be paid. Some people just don’t have the money to pay, and some people file bankruptcy.

The usual route for collection is to garnish wages, but a stipulation for income withholding is often a better alternative. With such an agreement, the debtor’s employer will send you a set amount of money on payday until the judgment is paid in full. This accomplishes the same as garnishment but without the fees which can be high.

If you decide to use small claims court, there are instances where attorneys may be helpful. The first is before you file a complaint. A demand letter from an attorney can let the other party know you’re serious about resolution and motivate them to work things out before the matter escalates to court.

Additionally, attorneys can be helpful in explaining the laws that support your case and can recommend ways to present your argument. They can also argue on your behalf in the court room. Generally speaking, the use of an attorney in small claims court is not cost effective if your case involves less than $1,000.

The good news is that mediators and judges in small claims courts are not looking for sophisticated legal arguments. They are accustomed to working with people from a variety of backgrounds and just need the facts of your case to try to reach a fair judgment.

For more information about small claims court in Wisconsin, see the consumer guide at http://www.wicourts.gov/about/pubs/circuit/docs/smallclaims.pdf.
Reprinted with permission from Holmen Courier and Onalaska Community Life, November 2, 2007.

by Michael L. Stoker, Attorney, Johns, Flaherty & Collins, SC                                 

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While enlightening, the Wall Street Journal’s report last month exposing how some smart phone applications track users was also disappointing. It sometimes seems the amazing utility of each new electronic gadget is matched only by its amazing ability to spy on you—subsequently sharing your preferences, personal information and even your location with savvy marketers who want to know as much as possible about you.

If you love your privacy as you love your smart phone, these tips can help you enjoy both.

• Treat your smart phone like a computer. Smart computer users install and use virus protection, avoid questionable websites and send suspicious e-mails directly to the junk folder. That’s a good way to treat your phone as well, particularly as it functions increasingly as a computer.
• Read user reviews before downloading new applications. User reviews are great for uncovering bugs in applications and learning from others what issues they’ve encountered with a particular app, thereby allowing you to learn from their experience—and occasional misfortune.
• Read user agreements before downloading. Many apps will disclose whether they are using tracking information. Both Apple (iPhone) and Google (Android) require such disclosure for its application developers, so it’s a good place to check. That way you can at least make an informed decision.
• Authorize location information only when needed. Obviously if you’re using a location-based application like Yelp, weather or mapping, your location is critical to accurate results. If an app that doesn’t need location information to provide what you need requests it, you have to question the motive.

by Cheryl M. Gill, Attorney, Johns, Flaherty & Collins

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As recently as 20 years ago, members of the press were pretty much the only people who had to worry about issues like defamation and libel. But with the explosion of social media in recent years, virtually anyone can have a platform and a mass audience with whom to share ideas. And that means virtually anyone can find themselves, unwittingly or otherwise, liable for defamation. It also means that topics reserved for mass communications and law students are now relevant for the public at large.

If you tweet, blog, tag or post, here are five steps to keep you out of defamation danger:

• Know what constitutes defamation. Just as its name suggests, defamation is when you defame another person through harmful statements about another person that you know or should know are false. Slander, when such statements are spoken, and libel, when they are written, are forms of defamation.
• Stick to facts; avoid opinions that could be construed as facts. Everyone is entitled to their opinions, but it’s critical to distinguish the difference between opinion and fact. If you believe a politician lied about his or her campaign finances, for example, but it’s not been proven, it’s best to precede any verbal or written statements about that belief with the words "in my opinion." It’s better yet to keep potentially defamatory thoughts to yourself.
• No name-calling. Even if you think the latest celebrity mistress is a home wrecker, name-calling can constitute character assassination. He or she may believe their paramour truly was separated at the time of the affair, in which case the home was already wrecked and your statement is false.
• Let readers reach their own conclusions. It’s likely that when faced with the facts, the same facts you encountered, many of your Facebook followers will view situations much the same way you do — without you exposing yourself to defamation claims.
• Don't retweet or link to someone else's potential defamatory material. Someone else may originate a rumor, but that doesn’t stop it from being untrue. Regardless of where a defamatory statement originated, anyone who repeats it is just as liable as the initial source.

For example, tweeting that your boss is a sexual harassment nightmare when no such claims have been verified would be considered libelous. But tweeting that you just won a judgment against your boss for sexual harassment, if true, is safe.

With the elections that just ended and the increasing use of blogs, I'm seeing more and more examples of what I understand to be libel. Is there any legal recourse if one thinks he or she has been slandered?                                                          

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If you thought the blogs were out of control during the elections, you are not alone. There were certainly many attacks against candidates in those online journals, according to Joe Veenstra, a Johns, Flaherty & Collins attorney. 

Were they libelous, meaning did they defame candidates? Not necessarily. To have a claim for defamation, the statement must have been published to another person, the information must be false, and, in most cases, it must have lowered the reputation of the person about whom it was said.

If you write something defamatory about your neighbor, you could be sued for libel under the negligence or "reasonable person" standard, meaning most reasonable people would not have made the statement. But if a person is a public figure, which applies to anyone running for office, then actual malice must be proven by clear and convincing evidence. Actual malice is a higher standard which means a statement was published knowing it was false or with reckless disregard for whether it was true or not.

Calling a politician ugly is a protected opinion, but suggesting he or she is a murderer without any charges being filed would be libelous.

Also, what is considered defamatory may change depending on the context in which the statement is made. For example, calling someone a communist in the 1950's might be defamatory, while calling someone a terrorist today could be libelous. "Defamation law is changing all the time," he said.

For more information about libel and slander laws, contact Joe Veenstra at 608-784-5678.

by Michael L. Stoker, Attorney, Johns, Flaherty & Collins

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If you read a lot of blogs (or Web journals), you’re likely to encounter some negative and even mean-spirited debate at times. With some of the badmouthing that finds its way onto many blogs and chatrooms, one wonders what sort of things the gatekeepers refuse.

Blogs offer a virtual worldwide soapbox, empowering people to share their opinions, however critical. In the past, such platforms were largely reserved for people at least somewhat versed in communications law. No more. More than 40 million blogs are on the Web today, with millions of Americans reading regularly.

If you are inclined to participate on blogs, you’d be wise to understand that many of the same laws and protections that apply to news media also apply to you, particularly where defamation is concerned.

Defamation is a false statement of fact, made negligently or with malice, that is harmful to someone’s reputation, When written, defamatory statements are ‘libel’; when spoken, they are ‘slander.’

In most cases, opinions cannot be considered defamatory. Courts will look at the statement in context to be sure it is truly opinion and not an assertion of fact disguised as opinion. For example, a court may not consider it defamatory to call someone "the worst" or "the most incompetent administrator," but calling someone a crook or accusing someone of unethical conduct, for example, could qualify as defamation.

The rules differ somewhat depending on the person you are writing or talking about. A private figure (a neighbor, classmate or coworker, for example) only needs to prove you acted negligently. A public figure (e.g., an elected official, celebrity or business leader at the head of a public action or debate) would need to show malice — that you knowingly published false information or that you published in reckless disregard for the truth.

The Communications Decency Act of 1996 provides bloggers their best hope of immunity from defamation and other tort actions. The federal statute provides that "No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider" and "precludes courts from entertaining claims that would place a computer service provider in a publisher’s role."

Though the act is targeting Internet service providers, Web hosting companies and the like, it was enacted in part to maintain the robust nature of Internet communication. The very nature of blogging — facilitating robust communication — means bloggers may find some protections in it as well.

If you’d like to play it safely, however, understanding these rules can help:

• You don’t have to name the subject person for defamation rules to apply; they need only be reasonably identifiable.
• If you knowingly republish or restate someone’s defamatory statement, you are just as responsible for defamation as the original source.
• Retractions can help if you learn you have conveyed defamatory statements. The retraction must be communicated as prominently as the original content.
• Hyperbole, satire and parody are not considered defamation.
• The statute of limitations on defamation in Wisconsin is two years.
• Defamation rules apply not only to individuals but also to goods and services of a company or business.
• Corporations are treated like private figures under defamation laws.

Even with a basic understanding of defamation law, however, bloggers would be wise to stay informed of new developments. As the blogosphere continues expanding rapidly, so too will the laws governing it. For now, your safest bet is to assume you are potentially liable for everything you allow to appear on your site.

Reprinted with permission from Holmen Courier and Onalaska Community Life, May 16, 2008.

 

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That photo you posted on Facebook of yourself dancing in the bar a week after an injury that supposedly left you permanently disabled? Not a good idea.

"If you argue that you really don’t do much in the way of activities because of your injuries and then go out and dance and someone sees it on Facebook, it can cast doubts on your claim," said attorney Michael Stoker.

But you don’t have to worry, right? You limit your posts to just friends and friends of friends. Wrong.

An opposing attorney will seek anything that could be used to disprove your claim. That may include photographs or something you posted on Facebook, MySpace, Twitter, your blog and other social media. That’s called discovery.

"This is an emerging area of the law," Stoker said, "but a lot of trial courts are saying that once you put something out on the web you have no expectation of privacy," he said. "Any information considered relevant to a lawsuit can be discovered."

With many people now spending more time on social media than e-mail, many businesses increasingly reach out to customers and prospective customers via Facebook and other sites. Companies should be prepared to preserve these messages and be able to produce them as part of discovery in a lawsuit.

Even if incriminating photos, messages or blog posts are deleted, a forensic computer expert could still find them. Also, your photos could live on in a friend’s Facebook or MySpace page or in the "tweet" you sent out with the photo.

Trillions of Twitter "tweets"—those up-to-140-character updates about what you are doing—are being preserved forever through the Library of Congress. Once they are archived, they will comprise a huge database that could be mined.

"Once a photo or a post is out there, it is beyond your control," Stoker said.

For more information on cyber law, contact Michael Stoker at 608-784-5678

I am a homemaker who recently divorced my husband of 40 years. I'm preparing now to apply for Social Security benefits. Am I eligible to receive benefits from my ex-husband's account?

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With one in two marriages ending in divorce today, this is a common question, according to attorney Maureen Kinney. 

"You can qualify for Social Security retirement benefits even if you have never worked outside the home or haven't worked enough quarters to receive benefits on your own earnings, even after a divorce," she said.

If you are 62 years of age, your former spouse is entitled to receive Social Security retirement and you were married at least ten years, you will probably be able to collect Social Security retirement based upon your former spouse's earnings. You will need to bring your divorce decree with you when applying for these benefits. However, when receiving Social Security under your former spouse's record, the payment is 50 percent of the former spouse's benefit. The former spouse's benefit is not in any way affected by the payment to you.

For example, if the wage earner would receive $1,600 in retirement, the ex-spouse would receive $800. In a divorce, we often think about dividing assets equally. However, you cannot divide a Social Security account. The only way to equalize the income between the former spouses based upon the Social Security earnings would be for the court to order additional maintenance.

Oftentimes a former spouse will do better on Social Security receiving benefits based upon her own earnings even though she may have been married for more than ten years to a former spouse. The earnings on your record may be higher than the 50 percent benefit that you would receive under your former spouse's earnings. You are entitled to take whichever benefit is higher. Also, the age when you begin receiving benefits has an impact upon the amount of the benefit. The earlier an individual starts drawing on Social Security, the smaller the monthly payment.

 

by Emily E. Hynek, Attorney, Johns, Flaherty & Collins, SC

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As numbers go, it’s probably the most important one you’ll ever have. It’s not your birth date, your bank account number or even your credit card number. It’s your Social Security number, and everyone seems to want it. But in this age of identity theft, you’re usually better off just saying no.

Your Social Security number is a unique identifier. For example, if two people have the same name, birth date, and hometown, their Social Security numbers will still be different. Because the number is assumed to be representative of only one person, any other person who gains access to it can virtually become you in any context where it is used.

When to use

That’s why you should only use your number on limited occasions. For example, you often need to use it when dealing with financial institutions, employers, and government agencies like the DMV, welfare offices and the IRS.

Other groups that may require your number include some government health plans, group health plans, insurance companies, and credit card companies during the application process.

When these organizations request the number, you usually must disclose it. In fact, you even need to provide your number to stop credit card offers from coming in your mail! Any time an entity requests your Social Security number, however, it must provide a statement indicating whether the number is indeed mandatory, along with how the number will be used and protected.

When to refuse

Private entities may demand your Social Security number, but it’s generally in your best interest to refuse giving it to such parties. But keep in mind that some businesses may refuse service to you if you refuse to give your number. Often, providing your driver’s license number, which is another number linked only to you, is an acceptable compromise.

If you decide to provide your Social Security number to a private entity, be sure the company takes careful steps not to publish, sell or otherwise disseminate your number.

The best plan is to share your number only with legitimate agencies and when absolutely mandatory. If you have any doubt, don’t share your number.

How to protect

Many people, despite their best intentions, unknowingly let their Social Security number slip into the hands of identity thieves. To prevent this from happening to you, follow these tips:

• Never give your number over the Internet unless you know the site is legitimate and you see the padlock symbol in the URL window.
• Never give your number in response to an e-mail. Identity thieves will send e-mails posing as legitimate entities and tell you that you need to provide your number to verify an account, for example. These are called "phishing scams" because they "phish" for identifying information by conning users into believing the sender and purpose are legitimate.
• Never write your number on a check, business card, address label or any other paper that has other identifying information about you. Your Social Security number combined with your name, birth date or any other personal data makes a thief’s job much easier.
• Don’t carry your Social Security card or any other information that has your number with you.
• Keep your number in a safe place. If you haven’t memorized it and think you’ll need it, break it into two or three sets of numbers written in different places. Others who see the numbers won’t know what they mean.

To monitor potential misuse of your number, take advantage of free credit reports. Everyone is entitled to a free credit report once a year from each of the credit bureaus (Experian, Equifax, TransUnion). If you spread that out, you can review a report every four months. You can also visit www.annualcreditreport.com for a free credit report.

If you find anything amiss on your credit report, contact the creditor directly to address the issue.

If you detect evidence of fraudulent activity, contact the police. Identity theft is a crime. Also, contact the credit bureaus and let them know someone else is using your number. Ask them to issue a fraud alert that will keep thieves from accessing more of your good credit.

Be sure to notify the IRS, an agency that will always need your Social Security number, and report the crime to the Internet Crime Complaint Center (www.ic3.org).

At all times, be cautious with your Social Security number. Recognize how valuable it is, don’t use it frivolously and do whatever you can to protect it.

by Cheryl M. Gill, Attorney, Johns, Flaherty & Collins

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Most people at one time or another have heard stories about students’ lockers being searched unfairly, student newspaper articles being censored or students sent home from school because of something offensive printed on their T-shirt, but few actually understand students’ rights in the public school system.

In short, students’ rights are no different than anyone else’s, but they may be justly compromised from time to time. While students do have the right to free speech and protection from illegal searches, those rights are balanced against the educational mission of the schools. The litmus generally is whether the students’ actions disrupt that mission.

That’s why schools may censor student articles or enforce dress codes. Courts often say that the educational process is in some ways about learning and studying controversial issues. The question is not so much if the action upsets other students but whether it would tend to provoke a disturbance. For example, a racist T-shirt would not pass any test; it is highly likely to provoke violent reactions.

A Supreme Court case during the Vietnam war demonstrates this point. It began when students wore black armbands to school in protest of the war. Consequently, the students were expelled. But the Court said the students’ actions were accepted in the school context because they weren’t intended to disrupt education, and you can’t ban speech based on other students’ reactions.

As for lockers, Wisconsin statutes say student lockers are school property. Ordinarily, the law would say that because schools are public property, there’s no reasonable expectation of privacy, but Wisconsin also has a statute that says locker searches can only be done without a warrant if it’s reasonable.

Wisconsin has several other statutes regarding students, including

• uniforms are OK in public schools so long as there’s a process where parents can exempt their children;
• public schools may not employ corporal punishment or subject students to strip searches;
• parents of students under age 18 are the only people with the right to see their child’s school records. Once students turn 18, they — and no one else, not even parents — are the only people entitled to see their school records.

State statutes cannot impinge on federal constitutional rights. For example, all Wisconsin public schools are required to start the day with the pledge of allegiance, but federal statutes dictate that no students can be required to say it or punished for not saying it. Likewise, you may discuss religion in schools and even sing Christmas carols, but you cannot force any students to be involved in observing religious holidays or participate in prayer.

When schools do attempt to stifle speech or other students’ rights, courts will consider "time, place and manner" restrictions. In other words, any restrictions on speech must be content neutral. That means you can’t allow students to wear armbands protesting a war while not allowing students protesting anti-war movements to wear similar symbols.

Time, place and manner restrictions also require schools who open their facilities to private groups to do so equally and to all groups who so request. Once you allow any group to use your public facilities, you cannot censor it because of content.

If as a parent you’re unhappy with what’s happening at your child’s school, try to work with the school. All these esoteric rights can be meaningless at the micro-level, and much can be accomplished through mutually respectful, open communication with teachers and administrators. While you are your child’s best advocate, be reasonable about it — remembering your child is watching you.

Reprinted with permission from Holmen Courier and Onalaska Community Life, September 29, 2006.

"My wife and I bought a timeshare a few years ago and it's just not what we expected or want. We've been trying to sell it now for a few months and then hired a company to help us, but we've had no interest from anyone. How can we get out?"                                        

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It may be the economy or the fact that maintenance fees are rising for older timeshare properties, but attorney Greg Bonney is seeing more of these inquiries. 

Owning a timeshare for a week generally means paying 1/52nd of the maintenance costs of the unit and the unit's share of common area expenses. As the facilities age, the fees typically increase because more maintenance is needed. Bonney has clients who are charged anywhere from $1,200 to $10,000 a year for their share.

His advice? "Before making a decision to sell, look at the contract. Even if you have a buyer, you may have to offer the unit to the developer first, or at least get approval to sell to a particular buyer," Bonney said.

Some people donate their timeshare to a charity for re-sale, but if the charity cannot find a buyer, then the charity is obligated to pay the fees. That means a charity should be careful before accepting a timeshare.

There are companies that can help sell timeshares, but clients have told him about paying upfront nonrefundable fees to companies claiming to have a buyer. But once the fees are paid, there is no further contact from the company.

"There are legitimate companies out there, but you have to be careful," Bonney said. "You should always check the Better Business Bureau and other consumer protection agencies to see if complaints have been filed against the company."

After trying unsuccessfully for years to sell a timeshare, some clients ask Bonney if they could just walk away from it. He reminds them they have a contract and it could affect their credit rating. They also could be sued.

"What I tell people, before they decide to walk away, is that they should contact the developer to see if the developer will accept the return of the timeshare. If not, the timeshare owner can either continue to hold onto the property or they can take the risk that the developer will not bring an action against them to enforce the contract.

To get a hint on how aggressive the company may be, they can check state court records to see if the company has brought lawsuits against other owners," Bonney said.

Is it unlawful for me not to state the warranty period for my work when I quote a job for a customer?

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It doesn’t matter whether the warranty period is stated in the quote, so long as it is stated in writing before the services are provided, according to attorney Michael Stoker. Without stating the warranty coverage in a written contract, the assumption is there is no warranty and the court will be left to determine what is appropriate." 

In order to warranty labor for home improvement, for example, the seller must do all of the following:

• Document the warranty in writing.
• Give the buyer a copy when the buyer contracts for the home improvements.
• Disclose all warranty terms and conditions.

If the seller installs a product that is covered by a manufacturer’s product warranty, the seller must give the buyer a copy of that warranty when the seller installs the product.

For more information about warranties, contact Michael Stoker at 608-784-5678.