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Hart | King Legal Blog

Is Your Website ADA Compliant?

ADA_COMPLIANCE+picture.jpg

Yes, the Americans with Disabilities Act has consistently been interpreted by U.S. courts to apply to digital content including websites, applications, mobile apps, and PDFs. The Web Content Accessibility Guidelines (WCAG) are technical guidelines referenced when testing for ADA website accessibility. One example of a scenario would be a photograph with no text identifying it. Because screen readers cannot interpret images unless there is associated text, a blind person would have no way of knowing what the picture is unless there was a hidden computer code label describing the photo. Remember, not everyone uses standard browsers like Google Chrome. There are many people who use different types of devices to access this information, such as text readers and audio scanners. Those tools need special instructions to help translate or convey the information on the web page to the user.

Random Thoughts About "Failure To Maintain Lawsuits"

FTMp9.JPGThe Mobilehome industry remains an unwilling participant and target defendant in multiple Failure to Maintain ("FTM") lawsuits. As a result, the legal exposure of Mobilehome Park owners in California has dramatically increased over the past 20+ years.

In the recent past there have been significant jury verdicts returned against Park owners in multiple California courts. Two of those, which are the impetus for this commentary, were returned in Los Angeles and San Diego Counties.

The LA case involved a Mobilehome Park located in Long Beach, CA. The trial was venued in downtown LA. In 2018 a jury returned an award in favor of a group of plaintiffs (tenants) of approximately $5 million in compensatory damages and another $30+ million in punitive damages!

EQUAL PAY: THE EVER-CHANGING WORLD OF EMPLOYMENT DISCRIMINATION

equalpay.jpgFor more than 35 years, California courts have accepted that the wage history of a newly hired person's prior salary as a "factor other than sex" in determining their current pay rate. A 2018 Court of Appeal decision found that an employer justifying an employee's current wage based upon previous employment compensation creates or perpetuates gender or race discrimination. It may be time for your company to revisit your hiring and employment practices, especially differences in compensation between your male and female employees to ensure that compensation differences are legally "job related."

As enacted, no employer having employees subject to the Equal Pay Act and the Labor Code shall discriminate between employees doing work requiring "equal skill, effort, and responsibility,... under similar working conditions" unless the reason is based upon:

  • a formal seniority system;
  • a formal merit system;
  • a formal system which measures earnings by quantity or quality of production; or
  • a differential based on any other factor other than sex. 29 U.S.C. § 206(d)(1) (emphasis added)." Rizo v. Yovino (Id.

CLUBHOUSE USE AND "SOCIAL HOSTS"

Many manufactured home communities have clubhouses for park and social events. Some events are sponsored by the Park, but some are sponsored by individuals or groups that reside within a given manufactured home community. An ongoing issue in many parks is whether to allow the service of alcoholic beverages at events held in a park's clubhouse. My firm, as a generality, always encourages any park owner that allows the use of a common area facility for an event where alcohol will be served, to require some form of additional adequate insurance.

California, over the past forty-five years, has been subject to a statutory scheme where a "social host" is generally immune from civil liability for serving or providing alcohol. That statutory scheme was addressed by a decision by the California Supreme Court entitled Ennabe v. Manosa.

Mobilehome Park Ground Lease

Ground leases are long term-leases that share many of the characteristics of a land purchase. The ground lessee acquires long-term exclusive rights of possession, including the right to build on and use the property as the lessee sees fit and to obtain any depreciation or other tax advantages that may accrue by virtue of owning income producing land.

The main difference between a ground lease and a land purchase of a Mobilehome Park is that, rather than paying for the underlying land value at the outset, the ground lessee makes rental payments over time which can be financed by, for example, Park revenue. Another significant difference is that, at the end of the useful life of the Park, the ground lessee might be able to walk away from the property with no further obligation, such as park closure costs.

RENT CONTROL - A TRILOGY OF DECISIONS

In the past month, Hart | King has received rulings in 3 separate rent control applications/hearings.

First, we received a ruling arising out of an application in the city of Lancaster. The city of Lancaster has a fairly expedited process for submitting discretionary rent increase applications. This park had exceptionally low rent and was literally losing money after all park operations were paid. The city hired its own independent expert to review the application and the economic basis of the application. After a half day hearing where oral testimony was presented by the park owner and the residents, the city issued its ruling. The park owner received a substantial rent increase to be implemented over 3 years. The rent increase will bring the park's rents to the average rent of comparable rent controlled parks in the city of Lancaster. The city's ruling was fairly prompt and, as noted, the entire hearing process was completed in one day of hearing. Chalk one up for rational decision making.

Why register your trademark?

Why register your trademark?

Trademarks are an essential part of everyday life. They provide consumers with a shorthand way of identifying the source of the goods and services they depend upon. Whether it's the trademark for the car we drive or the clothes we wear or even the restaurants where we eat, trademarks denote the companies that provide us with those cars, clothes, and restaurants. They are everywhere.

Trade Secrets Finally Get the Respect They Deserve

In May, President Obama signed into law new legislation known as the Defend Trade Secrets Act of 2016 (or "DTSA") which is intended to provide enhanced means of protecting the confidential information that many companies rely upon as the basis for their competitive advantage. More specifically, the DTSA amends the Economic Espionage Act of 1996 to provide a federal cause of action to private companies for trade secret misappropriation. The DTSA became effective immediately, but only applies to misappropriation occurring on or after the law's effective date and only protects trade secrets that are "related to a product or service used in, or intended for use in, interstate or foreign commerce." 18 U.S.C. § 1836(b).

Those of us who have been to law school know (or should know) that the three main types of intellectual property (or "IP") are patents, trademarks, and copyrights. But, we also know that trade secrets are often considered as IP, too. Generally speaking, trade secrets include lists of suppliers and clients, sales and distribution practices, advertising strategies, manufacturing methods, and even product formulas or recipes. So, when it comes to intellectual property, why are trade secrets so often looked upon as an afterthought?

Who Will 'Walk the Plank' In the Battle Over the HAVANA CLUB Trademark?

It has been quite some time since real pirates plied the waters of the Caribbean seeking valuable treasure, high-spirited adventure, and wooden casks of rum, but the recent thaw in U.S. relations with the Cuban government has reignited a decades old trademark battle over the "HAVANA CLUB" trademark for rum.

Currently, Bacardi Ltd. sells rum in the U.S. under the HAVANA CLUB name but its right to the trademark has been called into question by Pernod Ricard SA, a Paris-based distiller that is a partner with the Cuban government in a joint venture known as Havana Club International. Bacardi, founded by one of Cuba's oldest families in 1862, claims priority of rights to the mark through the Arechabalas family, who originally founded Havana Club, registered the trademark in the United States and then sold those rights to Bacardi. Both families fled the country in 1960 when Fidel Castro's revolutionary government nationalized the island's distilleries. Bacardi has sold rum made in Puerto Rico under the HAVANA CLUB trademark almost continuously since 1995.

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