MtBook US Leagal Services/在米日系企業・在留邦人のためのリーガルサービス

その他

Defamation

アメリカ 弁護士 法律事務所 法律 名誉棄損

Anyone who has been following the U.S. presidential election (and even many people who haven’t been following), knows that Donald Trump has taken center stage and has received most of the media focus throughout the process. A lot of this has to do with the fact that Mr. Trump seems to say outrageous things on a weekly basis. Many people in Japan are aware that Mr. Trump has recently stated that Japan and South Korea should develop nuclear weapons, though Japanese government officials have publicly reiterated the nation’s policy against nuclear weapons.

Though Mr. Trump’s statements are often outrageous and completely untrue, he is permitted to say them in the U.S. without repercussions from the government because of the freedom of speech guaranteed in the U.S. Constitution. However, somewhat ironically Mr. Trump has often sought to use the U.S. judiciary (a branch of the government) to silence those who say negative things about him. Mr. Trump has often sued or at least threatened to sue individuals for “defamation.” In addition, he has gone so far as to say that when he becomes president, he will change defamation laws, presumably to make it easier to sue people for speaking negatively about you.

Mr. Trump’s statements and actions highlight an interesting and somewhat complicated and confusing legal issue. Because the U.S. was once a British colony, the U.S. adopted many old English common laws, including the law that prohibited defamatory speech. As a result, under U.S. law, a person can sue someone else and collect damages because of injurious false statements made by the offender. However, when the United States was created, the founders of the country drafted and ratified a constitution, which states that “Congress shall make no law…abridging the freedom of speech.” In other words, the government is not supposed to restrict people from speaking freely. These two principles are thus at odds. U.S. courts have been forced to try and address the relationship between defamation laws and the freedom of speech in the U.S. The results of the many court cases over the last two centuries are a bit confusing and complicated. However, one thing that is clear is that, even though the U.S. Constitution guarantees freedom of speech, you can still be sued and ordered to pay monetary damages to someone else if you make false, injurious statements about them. It is important to understand this concept if you travel to or decide to move to the United States. While your speech is generally protected, leaving you free to say whatever you want, there are still potential repercussions that can result from the things you say. If you or someone you know is threatened with a defamation lawsuit in the United States, it is very important to talk to an attorney who understands this complex area of law.

(2016 Spring)

"Flying Drones"

アメリカ 弁護士 法律事務所 法律 米国でドローンを飛ばす If you are living in the United States and are one of the many people who has recently purchased an unmanned aircraft system (commonly referred to as a "drone"), you should be aware of the U.S. rules and regulations about drone use. In the United States, the Federal Aviation Agency (FAA) regulates all manner of flight – whether by airplane, helicopter, or even drone. Failure to comply with these regulations can result in very serious penalties. Just last year, a company in Chicago was fined $1.9 million for failing to comply with FAA regulations.

If you want to fly a drone in the United States, the first question you have to ask yourself is what is the reason for your activities. If you are simply flying a drone for pleasure, all you need to do is register your drone with the FAA and make sure you operate your drone in a safe manner away from restricted areas (such as airports). You can register your drone online for $5 here: https://www.faa.gov/uas/registration.

If you are planning to fly a drone as part of your business (no matter how minor the role of your drone is in your business) then the process is much more complicated. Currently, the only way to do this is to apply for what’s called a Section 333 waiver from the FAA. In your waiver application, you need to explain to the FAA the purpose of your operations and how you will perform your operations in a safe manner.

Be advised that under current rules and regulations, in order to fly a drone as part of your business requires you to be a licensed pilot. This is an extreme rule that will almost certainly be done away with once the FAA issues new drone specific regulations in the next year or so. But if you fail to comply, you could find yourself being fined by the FAA.

If you are looking to fly a drone for fun, chances are you won't need special permission from the FAA. But you will need to make sure you comply with certain rules and regulations. If you own a business and are looking to use a drone (either as a primary function of your business or just as a small part of your business), you are going to want to talk to a lawyer to help you navigate the ever-evolving FAA regulatory scheme. While you almost certainly won't meet the same fate as the Chicago company facing the $1.9 million fine, you could very well find yourself with an FAA Civil Penalty on your hands.

(Spring 2016)

"When Your Guests Drink and Drive: Understanding Dram-Shop and Social Host Liability Law"

アメリカ 弁護士 法律事務所 法律  招待客が飲酒運転するとき:酒場(ドラムショップ)・パーティー主催者責任法Hosting a Super Bowl party for your friends and family can be a stressful time: What will you serve? Where will everyone sit? Is your television big enough? One of the last things you want to worry about is what happens if Uncle Stan drinks too much and then gets behind the wheel of a car. Nevertheless, you should watch Uncle Stan's alcohol consumption not only because of your concern for his safety and that of other drivers, but also because of your possible legal liability should Uncle Stan cause an accident.

As a host, be aware of your state's dram-shop or social host liability laws. These laws identify situations in which a third party can be held liable for the actions of an intoxicated person. Such laws are meant to deter social hosts from over-serving drivers, and to find an additional source of money to help cover damages and injuries caused by drunk drivers. For example, under a traditional dram-shop law, if Uncle Stan gets drunk at Bar X and leaves and drives his car into a church van, injuring three van passengers, the passengers may be able to sue Bar X.

These laws vary broadly by state. However, they generally fall into two categories: laws that are directed only at commercial sellers of alcohol such as Bar X (usually called dram-shop laws), and laws that allow the injured party to sue private individuals who do not sell alcohol but who do serve it or make it available (usually called social host liability laws). State dramshop laws differ on whether a plaintiff must show that the bartender knew the customer he or she was serving was drunk and on whether the bartender must have known the customer was going to get behind the wheel. Social host liability laws vary even more. Some states don't have any such laws at all, while others have strict ones. In some states, these laws focus on underage drinking and only hold a social host responsible if the accident is caused by an individual under the legal drinking age (and in some states, there is a requirement that you are responsible for determining whether Uncle Stan is at least 21 years old before you serve him).

Other states extend social host liability to corporate parties. This could be a critical concern for you if you run a small business. Because these laws vary so much and could easily result in extensive financial liability for you or your business, make sure you fully understand your obligations and responsibilities before hosting that "open bar" party. If you do plan to host a party and serve alcohol, regardless of where you live, there are a few steps you can take in order to avoid legal liability (and, even more importantly, to make sure that your guests get home safely!). Keep taxi information, especially phone numbers, in a public place. Identify one or two designated drivers who will be available at the end of the evening. And eat! Provide plenty of food and nonalcoholic drinks and make them a central part of any get-together.

(Winter 2009)

“Protecting Your Assets From Lawsuits-Be Proactive”

アメリカ 弁護士 法律事務所 法律 <br />
健康保険及び雇用に関する遺伝子情報に基づく差別禁止法Imagine you are driving home from the store when a child darts into the street. You swerve to avoid him, and in the process, run head first into another car. After it's all said and done, you are sued by the other driver for the costs of her extensive medical care and car repairs. Could she end up getting your house? What about your retirement savings?

Across the country, newspaper headlines are packed with news of multimillion dollar court judgments for plaintiffs. These rulings can provide important relief and support for injured parties. However, they can also bankrupt defendants. Protecting yourself from a large legal judgment may be the last thing on your mind; however, if something goes wrong, you will be thankful for any and all prior planning.

State laws offer varying levels of protection against legal judgments. Therefore, it is important to research your state's laws. Nevertheless, a few general principals do apply. In all cases, you must be proactive. You cannot move or otherwise act to protect your assets from a legal judgment after you have been sued or had an accident for which you might be liable. Courts look negatively upon such moves. Consequently, whatever actions you do decide to take to protect yourself must be done ahead of time.

So what exactly could a large legal judgment put at risk? Again, this depends on your specific state laws, but there are some general rules. Any 401(k) plans and company pension benefits are likely protected. IRAs are another matter-their vulnerability will depend on where you live and whether the judgment forces you to declare bankruptcy. Life insurance policies are usually safe, as are any proceeds being paid to you from another person's policy. However, if you take such proceeds in a lump sum, a court judgment may be able reach them.

A major worry for many people facing a large legal judgment is their home. Since your house is often your largest investment, and at the end of the day, it is the place your loved ones call home, it may make sense to start liability planning here. In most states, a primary residence (meaning the place you intend to live most of the time) is protected to some degree from legal judgments. Some states place limits on the amount of value that will be protected, but these caps can vary.

Likely, your best bet to protect your home and other assets is to make sure you have adequate insurance coverage. Liability insurance is the most common insurance used to protect home owners. The liability portion of your homeowners' insurance is designed to cover unintentional injuries on your property and unintentional damage to other people's property-in other words, injuries caused by your negligence are covered, but not injuries inflicted on purpose.

If you have significant assets, you may also want to consider taking out an umbrella policy. For an additional fee, an umbrella policy protects you from a big judgment that might quickly eat up your regular coverage. These policies are relatively inexpensive because the insurers are betting ou'll never need them. The coverage picks up where your home and auto policies leave off, so in order to obtain one, you have to have certain levels of basic home and auto liability insurance. You also have to meet certain eligibility requirements, such as owning no more than a certain number of cars and not having been convicted of driving under the influence in the recent past.

Because no two policies are the same, it is important to carefully study yours and know what will and will not cover. Read the fine print. You may need additional coverage if you have a home-based business or natural or manmade attractions on your property, such as a pond or pool. Regardless of what form of protection you pick, at the bottom line, all that matters is that you and your family are protected!

(Summer 2008)

"Buying a Second Home During Retirement"

アメリカ 弁護士 法律事務所 法律  SecondHouse.jpgAs retirement approaches, many Americans start to think about their finances and where to invest or move their assets. For some, purchasing a second home is an important part of retirement preparation. With careful planning, this can be a
very valuable and significant option. If you are thinking about buying a second home, the first step is to take inventory of your current and future finances. Be sure to determine the sources of your future income (pensions or government benefits) in order to evaluate how much you can afford.

If you are planning on using the second home as a rental during part of the year, don't count on that rental income as part of your income. You never know if you are going to have a period without a renter. After undertaking this assessment, you will have a better sense of what you will be able to afford without stretching yourself too thin.

When actually looking at properties, take into consideration the same factors you would when buying your primary residence such as costs, taxes, and location. Ask yourself whether you want a part-time vacation home or a year-round home that you can eventually move into after you retire. If you are looking for the latter, you will want to ensure that the neighborhoods you are looking at don't shut down during the off-season. The last thing you want is to move into your second home and run out to buy a gallon of milk, only to find out that every store in the area is closed for the season!

Other important considerations when it comes to deciding whether to purchase a second home relate to money and taxes. If the second home is considered a residence-meaning you don't rent it out or use it for other business uses-any interest on your mortgage is deductible just as it is on your first home. In other words, you can deduct up to $1 million in interest on both homes (meaning you can deduct $1 million total, not $1 million per home). However, if you rent out your second home, the rules change and vary depending on how long your rent it out. Generally, if you have renters for more than 14 days a year, you will have to report any rental payments as income, but you will also be able to claim any mortgage interest and other costs during the rental time as business expenses. Lastly, depending on local laws, you likely can deduct the property taxes on any number of properties you own (regardless of whether you rent them out). Overall, these rules can be very complicated and can change depending simply upon how much time you spend in the second home. Therefore, it is probably worth it to talk to an experienced attorney before you take on a rental property in order to ensure that you don't run afoul of local or federal tax authorities.

For retirees, non-traditional properties may also be worth considering. These options include condominiums or retirement communities, and these often also include some significant benefits. Some of these communities offer services that take care of certain household chores such as mowing the lawn, snow removal, and painting. Others provide gyms, pools, and golf courses. And in some retirement communities, there may even be meal service or some form of medical care. If you pursue this option, you will likely purchase the real estate and then pay an additional ongoing fee to the community association for its services. However, it is important to note that these benefits have some pitfalls. In many communities, there are restrictions on what you can do with the exterior of your home, with your landscaping, on whether you can rent your home, and, in some extremes, on the guests you can have spend the night.

Second homes can create important sources of income and provide flexibility and excitement to your retirement. If you are a retiree, a second home could be used for investment purposes, or it may just be a way for you to live out the retirement you have always dreamt of. Whatever your reason, remember, you are still making a real estate purchase and need to exercise the appropriate level of care.

(Summer 2008) Copyright © 2008 Hisaka Yamamoto (Photo: © Lvnel | Dreamstime.com)

“The Innocent Shoplifter”

アメリカ 弁護士 法律事務所 法律  万引きの冤罪Almost all of us have had the experience while shopping of making a purchase, leaving the store, and having the alarm go off. You know you didn’t steal anything, and more often than not, the salesperson calls you back and removes a theft-deterrent device that was inadvertently left on your purchase. But what if it isn’t as simple as this? What if store personnel detain you for shoplifting? Can they legally hold you against your will?

Retail theft results in huge losses for businesses. This so-called shrinkage is a major worry for businesses that can see a substantial portion of their profits walk out the door with thieves. It is understandable that many stores put a great deal of time and effort into installing shoplifting deterrents, training staff to be vigilant, and in some cases, hiring staff specifically trained in loss prevention. However, even the best training can’t prevent all mistakes.

Innocent people often engage in behaviors that store security may be looking for: repeatedly returning to the same spot in the store, taking multiple items into a fitting room, and not talking to salespeople, just to name a few. Because what are often innocuous acts can sometimes look like shoplifting signals, there is a chance that as an innocent shopper, you may end up as an accused criminal. But, if you remain calm, after a short delay, you usually can be on your way.

In most states, merchants are allowed to reasonably detain a suspected shoplifter for questioning and a limited investigation. Usually, in order for a detention to be reasonable, the merchant must have a realistic belief that you attempted to shoplift. This often requires that store employees believe they saw you take some property and that they kept you in their continuous sight until you tried to leave the store without paying.

Once management has decided to detain a suspected shoplifter on the abovementioned grounds, the law generally permits store employees to do so, but only for a “reasonable” period of time. What counts as “reasonable” will vary but is likely limited to the time needed to identify the suspect and call local law enforcement. Most state laws allow merchants to ask suspects for identification and to return any unpaid merchandise. In some areas, employees may even pat down suspects if there is reason to believe that they may have a weapon. In a nutshell, if you have done something to raise the reasonable suspicions of store employees, they probably can detain you.

If you are wrongly detained, try your best to remain calm and reasonable. Chances are that the store employees are worried about their safety; therefore it makes sense for you to take care not to do anything to make them think you are a threat, which might, in turn, put your own hysical safety at risk. You can try to the best of your ability to explain your behavior (“I thought I put the shoes in the correct box.”) However, realize that the employees may not give much weight to your explanations; chances are good they have heard it before. While you are being detained, the store employees should be willing to accommodate any reasonable requests, such as for water, prescription medication, or use of the bathroom. If local law enforcement is called and you are detained by the police, you should immediately state your desire to speak to an ttorney. Be polite, but wait until your attorney arrives before engaging in any lengthy discussions with the police.

Store security might say that you are expected to pay for the property they allege you took, which is common practice, and in many places, legal. This is known as civil recovery and allows the store to directly ask you to pay what they think you owe without any court or law enforcement involvement. While you are detained, you should protest politely any supposed fines. After the event, you should write a letter to the company’s head of loss prevention, explaining
why you don’t believe you should have to pay. Although no court involvement is initially required, these notices and allegations should be taken seriously. Leaving something such as this unattended could result in major fines and headaches. If you believe your rights were violated during the detention or if the store continues to pursue you for payment, you should talk to your attorney about your options and possible remedies.

(2008年春) Copyright © 2008 Hisaka Yamamoto (Photo: © Vadimone | Dreamstime.com)

“Sunsets, Beaches, and Visas: Retiring Abroad”

アメリカ 弁護士 法律事務所 法律  Sunsets, Beaches, and Visas: Retiring AbroadThese days, more Americans are thinking about retiring outside the United States. There can be some definite advantages to retiring abroad, but if you are evaluating such an option, be sure to consider the following issues.

First, ask yourself why you want to retire in another country. Some people go for the weather; others for certain public policies (such as same-sex marriage). Others retire abroad for financial reasons. Some countries have advantageous tax laws or a lower cost of living. After determining the “why,” you can properly assess whether you should be a seasonal or permanent resident. This decision will likely affect your immigration status, your ability to buy property in some countries, and your health care.

Once you have established where you are going and for how long, you need to determine the necessary documentation and immigration steps. Some countries recognize retirees as a separate immigration category, meaning that you can simply apply for status as a retiree, but this is by no means consistent worldwide. For example, Mexico has a special immigration status for retirees, but the United States does not. To find out how to apply for the necessary documents and visas, contact the destination country’s embassy or consulate here in the United States.
Regardless of the requirements of the destination country, you will want to make sure that you have a valid U.S. passport that will allow you to travel back to the United States and to other countries, should the need arise.

The next issue to research is whether any restrictions are placed on foreigners in your destination country. Some countries restrict the amount of land that foreigners may own, or require them to obtain special permits. Others have very liberal policies towards foreign landowners. Regardless of official policies, if you plan to buy or rent property in another country, you should do so only after detailed research and professional legal advice. Obtaining clear title is
not always as straightforward in other countries as it is in the United States. Whenever possible, consider purchasing title insurance.

Before actually leaving the United States, compile a packet of your important
documents and information to be left with a loved one. This should include copies of your passport and other identification, a recent passport-eligible photo, your original birth certificate, and contact information for the U.S. Embassy in your destination country. This ensures that if you lose something or if something should happen to you, important information will remain easily accessible.

Another issue to consider is how you will pay for medical expenses. Even if your destination country offers public health care, you may not be eligible to receive these services, especially when you first arrive. You may need to purchase insurance above and beyond what you currently have. Additionally, you should find out from your family doctor whether you need to get any vaccinations before traveling to your new home.

If you are a pet owner, find out if there are any restrictions on bringing domestic animals into your destination country. Some countries require updated vaccinations, and others may require your pet to be quarantined for a period of time when you first arrive. You should contact the country’s embassy in the United States well before you plan to leave so you can make appropriate arrangements.

Living abroad is a valuable option for many soon-to-be-retired Americans but should be discussed thoroughly with an attorney as part of one’s retirement legal “checkup.”

Before retiring abroad or even traveling abroad for extended periods of time, you should make sure you have thought about the following important issues:
 ○Why are you considering a certain country? Tax purposes? Social policies? This may impact your immigration status and the length of your stay in the destination country.  
 ○What documents and immigration status do you need? Can you file for a special status as a retiree?
 ○Do you have a valid U.S. passport?
 ○Can you purchase land in your destination country? Are there any restrictions or special issues you should be aware of?
 ○Does someone back home have the necessary paperwork? Make sure to leave copies of important documents with a family member or friend back home.
 ○How will you pay for medical care if you get sick? Does your U.S. insurance cover you in your destination country?
 ○If you own pets, can they come with you? Do they need special vaccinations? Will there be restrictions on them when you arrive?
These are important topics to discuss with your attorney when planning for retirement. If you have any questions about specifics in your destination country, contact its embassy in the United States.

(Spring 2008) Copyright © 2008 Hisaka Yamamoto (Photo: © Barsik | Dreamstime.com)

“Thinking About Retirement? Time for a Legal-Check Up!”

アメリカ 弁護士 法律事務所 法律 引退を考えたら、リーガルチェックアップJust as your health can benefit from regular medical checkups, periodic legal checkups help you avoid costly legal problems. These checkups allow you and your
attorney to evaluate your current situation, examine options and risks, and explore any needed corrective steps. Although checkups are important throughout your life, they are of particular value before a major life change, such as retirement. If you are thinking about retiring in the near future, this is probably a perfect time to meet with your attorney to ensure that you are legally
ready for this next step.

There are many important legal considerations when you are preparing to retire. Before retiring, you will need to determine what your current expenses are, the type of life style you want during retirement, and how long you expect to live. This will give you an estimate of the financial resources needed to support your retirement. Next, you will want to check your eligibility for government benefits and support, especially if you or a loved one will rely on any government support. In many circumstances, certain age and employment requirements must be met in order to be eligible. For example, your Social Security benefits will be different if you retire at 62, 65, or 70. To get a sense of your Social Security benefits, you can visit www.ssa.gov and order a copy of your Social Security statement. Other government benefits such as Medicare have additional guidelines and requirements.

Other important retirement considerations include forecasting your income and assets, breaking down and understanding your employee benefits and pension plan, and keeping up to date with your estate planning. If you plan to travel for a significant period of time, you will want to work with your attorney to determine the necessary travel documentation as well as ensure that your assets back home are protected and supervised.

Going into your legal checkup, it may be helpful to bring:

  • any financial and benefit information from your employer,
  • your most recent Social Security statement,
  • a list of your current expenses,
  • a list of your various investments, including 401(k)s, IRAs, stocks, and real estate,
  • any estate planning documents you have, and
  • a list of the activities you would like to do during your retirement.

Working with your attorney to develop a solid plan can save you headaches down the road and ensure that you can enjoy your retirement years.

A note from the Editor: This is the first in a series of articles US Legal News will be running preparing you for retirement. Be sure to look for upcoming discussions on retiring out of the country, buying a second home, protecting your pension and assets, and legal protections for those starting a new career later in life.

(Winter 2007)

"Holiday Travel - Know the Rules and Know Your Rights

アメリカ 弁護士 法律事務所 法律 休暇中の旅行−規則と権利With the holidays fast approaching, you likely have a lot on your mind - travel arrangements, work schedules, parties, and gifts. If you do plan on traveling, particularly on an airplane, you may want to take a moment to review the rules and regulations for air travel.

The first question many have when confronting airport security is “is this legal? Can they do that?” The basic answer is yes. Although the Fourth Amendment to the U.S. Constitution says that the government must have a warrant to search you, airport searches are considered special needs” exceptions to this rule. Courts across the country have ruled that airport searches are reasonable because they serve a purpose beyond simple law enforcement. Some courts have even gone so far as to hold that when you fly, you are implicitly consenting to being searched. In today’s post 9/11 world, you can assume that you are going to be searched in some manner and that you will have to follow restrictions on what you can bring on the plane.

Carry-On Restrictions
The limit on liquid carry-on items is the restriction that presently receives the most attention. A common complaint amongst travelers is that the limitations seem random and odd. However, according to the Transportation Security Administration (TSA), these restrictions are based on extensive explosives testing and ensure that no effective amount of a single explosive could make it onto a plane.

To help remember the amount of liquids you can carry on a plane, TSA urges passengers to focus on “3-1-1.” This means: no more than three ounces of any one liquid; all liquids placed in one quart-sized, clear, plastic, zip-top bag; and only one zip-bag per passenger. TSA requires this separate clear bag in order to reduce clutter and make the entire screening process more efficient. There are of course exceptions to this restriction, including: baby formula, juice for children, and any liquids required for a disability or medical condition. Remember, when in doubt, your best bet to avoid hassles and delays is to simply put liquids in your checked luggage.

Other rules have long been in place that prevent you from carrying potential weapons, such as knives, box cutters, and golf clubs. Nevertheless, TSA allows numerous surprising items in your carry-on, such as disposable razors, scissors (under four inches in length), cigar cutters, and corkscrews. Again, if you are unsure, your best choice is to just check your bags.

Complete Restrictions
TSA has totally banned some items even from your checked bags. These items generally pose a fire risk, and include gun powder, flares and fireworks.

If you have any questions or concerns regarding what you can and cannot carry on a plane or check in your bags, you should consult TSA’s website at www.tsa.gov. It is important to stay up to date as these restrictions can change quickly and can easily impact your holiday travel.

Other Security Procedures
If you have traveled on a plane recently, you know that restrictions on carry-on and checked luggage are not the only security procedures currently in place. As has been the case for decades, every passenger must present their carry-on bags for x-ray examination and must walk through a metal detector. Again, these procedures have been upheld by various courts as acceptable searches.

Additionally, many airports also conduct “random searches.” These searches are usually in addition to the metal detectors and often involve an extra “pat-down” of the passenger and a hand-search of the carry-on bags, meaning that a TSA officer actually looks inside the bag. This is an area ripe for claims of discrimination, but so long as the searches are actually random, usually computer assigned, there is no constitutional violation.

Other security procedures include canine patrols and stronger cargo security. Also, many airports now conduct random searches of cars as the approach they facility. These searches usually consist of a visual investigation of the trunk, the interior of the vehicle and its underside.

Different Abroad
It is important to note that TSA requirements are only applicable in the United States. If you are traveling abroad over the holidays, you will want to determine the restrictions and regulations in place where you are traveling. Most restrictions are similar; however there are sometimes important differences. For example, for a period of time in 2006, passengers traveling out of the United Kingdom were not allowed to have any carry-on bags. The European Commission (ec.europa.eu) provides information on passenger rights and restrictions when flying in the European Union, and your air carrier can provide you with the specific requirements for your flight.

What You Can Do
There are many things you as a traveler can do to ensure that your travel experience is relatively hassle free.

Arrive Early: Give yourself plenty of time at the airport before your flight is supposed to take off. Going through all the security steps is a lot less stressful if you aren’t in a hurry.

Don’t Wrap Presents: Wait until you get to your destination to wrap any gifts.
Wrapping paper may prevent security officials from being able to properly assess the contents of your bags and can increase delays.

Listen To Announcements: Airport and security officials will often make announcements about specific security requirements (such as removing your shoes).
Pay attention to any announcements and follow directions.

Plan Ahead: Before you travel, make sure you know the exact restrictions for the airports you will be using, for your airlines, and for the countries you will be in. Knowing exactly what will be required of you beforehand is the best way to ensure smooth travel.

Follow Up: If you feel your rights have been violated, if you have been discriminated against, or if the airlines failed to provide adequate customer service, make sure to follow up and voice your concerns. TSA and the Department of Homeland Security are very sensitive to charges of discrimination during the screening process. Both agencies have complaint-filing instructions on their websites. If you have a problem with a specific airline, a call or email to their customer service department never hurts – and may result in some extra frequent flyer points for you!

What To Do If Detained?
Usually airport security is merely a hassle and slight delay. However, occasionally it can quickly dissolve into a serious legal situation. During your travels, if you are delayed by airport or immigration officials, the first step is not to panic, but also to realize that this is not a time for jokes or belligerence.

If you have been detained by security officials, it may be easiest and quickest for you to simply follow their directions and requests. The reason for your detention could be as innocent as a random additional search following predetermined procedures. The news is filled with stories about situations that quickly escalate because a detained passenger becomes angry or abrasive. If you are polite and follow directions, there is a chance that you will quickly be on your way and may still make your flight.

If you truly are “detained,” meaning you don’t feel you have the right to leave freely, realize that you are considered “in custody” for constitutional purposes. This means you have the right to remain silent and to talk to a lawyer. Ask polite questions to determine why you are being detained and attempt to get the names and badge numbers of any officials questioning you. Immediately report the detention to the airline and attempt to continue with your travel plans if possible. If for any reasons you think your rights were violated, do not hesitate to contact TSA, the Department of Homeland Security, or your attorney.

(Winter 2007)

“Election Season ”

アメリカ 弁護士 法律事務所 法律 選挙シーズンThere is no denying it, the campaign season is in full swing. But with the 2008 election still a year away, it is going to be a long campaign. Nevertheless, you really have only one thing to worry about - voting. Voting is one of the most important civic duties, yet recent voter turnout rates hover around 51%. Voting isn’t always as simple as waking up on Election Day and filling out a form - to ensure that your voice is heard, you must carefully follow registration and voting requirements.

In order to be eligible to vote, you must be 1) 18 years or older on Election Day, 2) a citizen, naturally born or naturalized, and 3) registered. Registering usually requires that you either register in person or mail in your registration. In most states, you can register at your local Department of Motor Vehicles. You should check with your Secretary of State to determine exactly where to register in your state. In addition, downloadable registration forms are likely available from your Secretary of State’s website. You simply fill out the forms and mail them in. Rock The Vote (www.rockthevote.com) and Declare Yourself
(www.declareyourself.com) also provides a registration form that works in most states.

In some states, such as Minnesota, you can register at your polling place on Election Day so long as you can verify your residence. In others, you must already be on the roll of eligible voters in order to vote on Election Day. This means you must register before Election Day. Deadlines for registration vary, but are usually 15-30 days before the election. The moral of the story is―to be sure you can vote in 2008, don’t wait, register early.

Federal elections are held on the Tuesday after the first Monday in November. Although this may seem like a random date, it actually has ties to our agrarian, rural, religious beginnings. This date ensured that voting wouldn’t interfere with farming or religious obligations and would allow ample travel time.

Today, the importance of Election Day is recognized in some states by its status as a holiday. For example, Delaware and Indiana recognize an Election Day holiday. If you live in a state where Election Day is a holiday, check with your employer to ensure you can have the day off. If instead you live in a state that doesn’t recognize the holiday, you should still talk to your employer about policies that may permit you to take time off for voting. Some employers grant their employees a late start or early departure on Election Day.

On Election Day, you should bring your voter registration card, a government issued ID, and proof of residency. Proof of residency is often simply an official document that lists your address, such as a check or lease. Although states vary as to the exact identification requirements, bringing all three ensures that you won’t hit any snags. Your polling place should be identified on your registration card. Usually it’s a school or community center within walking distance of your home. If you have lost your registration card or have yet to receive it, you can find your polling place by searching your Secretary of State’s website.

The right to vote is a constitutionally protected right. If you believe you are properly registered and eligible to vote, but on Election Day are denied the ability to do so, you should ask to file a “provisional ballot.” This will allow you to vote normally on Election Day. Afterwards, your ballot will go through a review process to confirm your eligibility.

Remember voting is your right. If you have any questions about voting procedures in your state, your eligibility, or if you feel your rights have been violated, work with your attorney to answer your questions and identify the proper course of action.

(Fall 2007)

"Legal Update - Fourth Amendment"

アメリカ 弁護士 法律事務所 法律 最高裁最新判例:修正第4条As a passenger in a car stopped by police, you probably wouldn’t feel free to simply walk away. In June, the United States Supreme Court ruled that you aren’t expected to. Brendlin v. California asked the Court to decide whether a passenger in a car stopped by police should be considered “seized” within the meaning of the Fourth Amendment, which bans “unreasonable searches and seizures.” Under the Court’s prior decisions interpreting the Fourth Amendment, if you are seized illegally by government officials, any resulting evidence cannot be used against you at trial. Courts have long recognized that the driver of a stopped car has been “seized” and therefore can challenge the constitutionality of both the stop and the government’s use of any resulting evidence. Before Brendlin, courts disagreed about whether passengers had this same right.

The Supreme Court held that Brendlin, a passenger, could challenge the constitutionality of a traffic stop. In reaching this result, the Court applied its test for identifying Fourth Amendment seizures − would a reasonable person in the same position feel free to leave? In ruling that passengers in stopped cars are likely going to think that they can’t leave, the Court noted: “We think that in these circumstances any reasonable passenger would have understood the police officers to be exercising control to the point that no one in the car was free to depart without police permission. A traffic stop necessarily curtails the travel a passenger has chosen just as much as it halts the driver.”

If you think your rights under the Fourth Amendment have been violated, or if you are interested in learning more about your rights as a passenger, talk to your lawyer about your options.

(Fall 2007)

"Intending Citizens"

Intending CitizensIntending citizens are non-naturalized immigrants who are actively pursuing naturalization and have been:

  • lawfully admitted to the U.S. for permanent residence (green-card holders);
  • granted temporary residence in the U.S. under IRCA’s legalization program;
  • granted asylum in the US under the Immigration and Nationality Act; or
  • admitted to the U.S. as a refugee under the Immigration and Nationality Act.

(Summer 2007)

"Neighborly Relations"

Neighborly RelationsWith the warm weather, many Americans enjoy outdoor activities, reacquainting themselves with backyards and patios. These activities sometimes result in disputes with neighbors. Now that you’re sitting on your deck again, you’ve noticed that your neighbor’s tree has a dead branch hanging precariously over your prized petunias. Or maybe the fifteen-year-old kid next door has taken up the drums this summer, and practices in the garage very loudly and very late. What can you do?

It is always best, if at all possible, to resolve disputes with your neighbors informally. Step one should be to discuss the problem with your neighbors. Maybe they don’t know about the dead branch threatening your garden, and perhaps the parents of the aspiring percussionist don’t realize how far the sound of his practicing carries. If things don’t change, you’ll want to know the applicable local ordinances and subdivision and municipal regulations. You can look in the municipal code (found online or at your local library or city hall or by contacting your local council representative).

You may be permitted to trim the tree branch threatening your petunias, with certain restrictions:

  • You may trim up to the boundary line only.
  • Unless the tree poses “imminent and grave harm” to you or your property, you need permission to enter the tree-owner’s property.
  • You may not cut down the whole tree.
  • You may not trim the tree in a way that will destroy it.

It is always best to notify the neighbor before pruning his or her tree. If the owner objects, offer reassurance that the job will be done professionally and responsibly. If the tree has already caused damage to your property, state law determines the scope of the owner’s liability. Liability generally depends on the extent of the damage.

The would-be drummer is likely addressed in your municipal code through limits to allowable decibel levels. Your local police may have a decibel machine that can measure the noise of the unnerving drum solos. Such measurement will be crucial should you need to proceed against your neighbor in court.

Be sure to check the details of any municipal noise ordinance. Many noise regulations are limited to certain “quiet times” when most people are asleep.
These quiet times generally start between 10:00 p.m. and midnight and last until 7:00 a.m. or 8:00 a.m. on weekdays, and sometimes later on weekends. Though the rules of politeness require the next-door musician to keep it down when asked, the laws may only require it between certain hours. If talking to your neighbor doesn’t resolve the problem, obtain a copy of the applicable ordinance and mail it, along with a letter of warning, alerting your neighbor that his or her actions are breaking the law. Be sure to keep a copy for yourself.

Wait a reasonable amount of time for your neighbor to comply with your request before advancing the dispute to the next level. If it is clear that the letter has not resolved the dispute, suggest mediation.

Mediators are trained to listen to both sides in a dispute, identify problems, and suggest compromises and equitable solutions. A mediator is an impartial third party who, unlike a judge in a courtroom setting, does not decide a winner and a loser, but rather strives to make both parties win. With a mediator, there can be no resolution until both parties agree, and the two sides are more likely to comply with the resolution, since both agree to it.

In the case of the would-be percussionist, your neighbor might be subject to prosecution as a nuisance. Nuisance is a legal term for a person’s unreasonable action that interferes with your enjoyment of your property. Your local ordinance may make nuisance a crime (usually a misdemeanor) or a civil violation. Whether criminal or civil, the city carries the burden of prosecuting a nuisance case.
Your role as the complaining neighbor is limited to testifying if the case goes to trial. Any money collected from the neighbor will be in the form of fines paid to the city, not damages to you.

Your lawyer can help you determine the best course of action in an extended dispute with your neighbor. If your lawyer is not a trained mediator, he or she will be able to help you find one. If mediation fails, or if your neighbor refuses to attend mediation with you, your lawyer can advise you on pursuing a civil lawsuit or filing a nuisance complaint with the city.

(Summer 2007)

"Moving Season"

Moving SeasonMore than 40 million Americans change residences each year, and a large number of those moves take place in the summer months. If you are preparing to move, it is important to know your rights and responsibilities when hiring a moving company.

Most moving companies are legitimate, reputable businesses, but there are a growing number of complaints against interstate movers who hold their clients’ possessions hostage on their truck, demanding far higher sums than their agreed- upon estimate. There are several key characteristics to look for that will help you avoid running into rogue movers:

  • The movers should offer or agree to an onsite inspection. Do not trust estimates done sight-unseen that seem too good to be true. They probably are.
  • The company’s Web site should feature a local address and information about their registration and insurance.
  • On moving day, you should see a company-owned or marked fleet truck, not a rental.

For interstate moves, the Federal Motor Carrier Safety Administration (FMCSA) requires the company to have a U.S. DOT number. You can double check this registration at www.protectyourmove.gov. For moves within a state, regulations vary. Check with your local consumer affairs agency for more information.

Once you have selected your mover and you feel confident that they are a reputable company, you should understand what their liability is with your belongings. All movers must provide basic liability of $0.60 per pound per article. This protection is provided at no extra cost to you. However, with it, the moving company is liable by weight rather than value. For instance, under this no-cost liability, if the mover loses or destroys a ten-pound object valued at $1,000, they are still only liable for $0.60 multiplied by ten pounds, or $6.00.

You also have the option of Full-Value Protection (FVP), a comprehensive protection plan. Under FVP, if any article is lost, damaged, or destroyed, the mover must repair it, replace it, or pay you the current market value of that item. You will automatically receive this level of protection if you do not waive it in writing. Be warned, your moving company will charge you for this protection, and the cost is a percentage of the total value you place on your shipment. The more value you assign to your property, the more it will cost to secure FVP.

As a third option, some movers may also offer separate liability insurance through a third-party insurance company. If you choose to purchase this extra liability insurance through your mover, the mover is required to issue a policy or other written record of it at the time of purchase. Without such documentation, the mover is liable for any loss or damage caused by its negligence.

There are some actions that will limit or reduce the mover’s normal liability. These actions include the inclusion of perishable, dangerous, or hazardous materials without your mover’s knowledge and the failure to notify the mover in writing of articles valued at more than $100 per pound (for instance, jewelry, silverware, china, furs, computer software, etc). Additionally, many movers will refuse to accept liability for damages caused to articles they did not pack. As a result, you may want to consider allowing the movers to pack your more valuable items to assure they will be covered.

Some homeowners’ and/or renters’ insurance policies cover damage or loss sustained during moves. Check the details of your policy before making a decision about liability insurance or FVP for your move. To protect yourself in an unforeseen dispute, be sure to receive a bill of lading from your mover. The bill of lading is the contract between you and the mover. Legally, the mover must prepare one for every shipment it transports. The moving company representatives who load your belongings onto the truck should give you a copy before or at the time of the loading. Read the bill of lading before you accept it. Do not sign it until you fully understand and accept what it says, and take care to have it available until your shipment is delivered, paid for, and any claims are settled.

When arriving at your new home, your mover will expect you to sign a receipt for your shipment. This receipt should indicate that you have received the materials. It may not contain any language releasing the company or its agents from liability. If any such language is present, strike it out before signing.

If your move results in loss or damage to any of your property, you have the right to file a claim to recover money. File the claim as soon as possible. If your claim is not settled to your satisfaction, you may use arbitration to settle it. Every mover must participate in an arbitration program, and movers are required to provide information about their arbitration program prior to moving day. If you cannot settle a claim, and arbitration fails, or you choose not to go to arbitration, you may file a civil action. Your lawyer can help you determine if this would be an appropriate course of action.

(Summer 2007)

"Preappoved Credit Card Offers"

Preappoved Credit Card OffersIf you have a credit card and a decent credit record,
chances are that you receive dozens of “prescreened” or
“preapproved” offers for credit cards every month.

There’s nothing wrong with these offers. You get them because
companies that solicit new credit card accounts have asked a
consumer reporting company for a list of people in the
database who meet certain criteria or who have a certain
credit score. Receiving preapproved offers-or rejecting them-does not have any effect on your credit rating. In fact, prescreened offers can be useful if you are in the market for a credit card. They can help you learn about what’s available, compare costs, and find the best product for your needs. Because you are preselected to receive the offer, you can only be turned down under limited circumstances.

However, preapproved credit card offers do contain sensitive personal information.
If other people have access to your mail, or if you dispose of preapproved offers in the trash without shredding them, then they can put you at risk for identity theft. If you decide that you don’t want to receive prescreened offers of credit and insurance, you can opt out of receiving them by calling 1-888-5-OPTOUT or by visiting www.optoutprescreen.com. The telephone number and website are operated by the major consumer reporting companies.

(Fall 2006)

PageTop