Archive for the ‘Legal’ Category
“Considering the fundamental purposes of bankruptcy and tort law, a meager, inflexible, legislatively ascribed exemption for a personal injury recovery is a poor way to compensate an injured debtor and afford the fresh start necessary to prevent future costs to society, creditors, and insurance companies.”
The following quote is an introductory excerpt from a pay-per-view legal paper that rubbed me the wrong way and which started me thinking. I have not paid-to-view, so I’m not starting with very much. This present posting of mine may grow and change over time as I chew on the issue. There are two reasons the following excerpt attracted my attention. First, Kentucky exemption statutes have a provision that is similar to § 522(d)(11)(D) of the Bankruptcy Code that I never really though about much before. Second, the confusion and uncertainty seemingly caused by § 522(d)(11)(D) is foreign to me. The explanation that comes to me at first blush involves the fundamental difference between how personal injuries are valued in standard tort law and how they are valued in statutory compensation schemes like Workers’ Compensation. I’ll have to work out the details later, but this is a start. It is a note to my self.
In terms of statutory interpretation, one of the most potentially troublesome federal bankruptcy exemptions is § 522(d)(11)(D) of the Bankruptcy Code, concerning the debtor’s right to receive “a payment, not to exceed $ 16,150, on account of personal bodily injury, not including pain and suffering or compensation for actual pecuniary loss, of the debtor or an individual of whom the debtor is a dependant.” 1 At first glance, the provision seems to be relatively straightforward, but on closer examination, the terms employed by the statute seem to cancel each other out by excluding every possible element of a personal injury recovery, rendering the exemption useless.
NOTE & COMMENT: Confusion Over § 522(d)(11)(D): What Congress Really Meant by Exempting Payments for “Personal Bodily Injury” and Why They Got It Wrong, by Louis J. Papera (2000) Full text available for purchase on Lexis
KRS § 427.150(2)(c) provides an individual shall be entitled to exemption of the following property:
A payment, not to exceed seven thousand five hundred dollars ($7,500), on account of personal bodily injury, not including pain and suffering or compensation for actual pecuniary loss, of the debtor or an individual of whom the debtor is a dependent.
11 U.S.C. § 522(d)(11)(D) exempts the debtor’s right to receive, or property that is traceable to:
[A] payment, not to exceed $15,000, on account of personal bodily injury, not including pain and suffering or compensation for actual pecuniary loss, of the debtor or an individual of whom the debtor is a dependent.
KRS § 427.150(2)(c) is nearly identical to 11 U.S.C. § 522(d)(11)(D).
I’m fairly careful when it come to taking the online bait. I like to read the fine print and I know if an offer sounds too good to be true, it’s probably not true. But, sometimes I slip up and make a mistake.
Recently I’ve been looking at electronic cigarettes as an alternative to smoking, but I don’t know anyone personally who has any experience of them. Online testimonials from strangers don’t count much with me, but a free trial offer online did catch my eye. Trial offers are a standard marketing strategy for new products. The company is betting that you will like the product and buy it. This makes sense for consumable products like razor blades and electronic cigarettes. The razor blade doesn’t last long and if you like it, you have to buy more.
It’s the same way with electronic cigarettes that use consumable nicotine cartridges. The electronic cigarette is a smokeless nicotine delivery system, and as cigarette companies have known for a long time, nicotine addicts make good long-term customers. So, a free trial offer of an electronic cigarette starter kit seemed reasonable to me. The company might lose money on the starter kit, but they would make it up on the refill cartridges.
But it was a trick. It was a nasty little trick that more than a few fell for. The company website intentionally hid the full terms of the deal by linking through using black type on a black background. The nasty details were there, but they were literally invisible to casual inspection. Only by selecting the text and highlighting it is reverse color did the link to the full terms of agreement become visible.
As you can see at the bottom of this web page screen shot, indicated by the white arrow which I added, there is nothing but blackness. But, once I highlighted the text, voila!
The invisible becomes visible. There is a “Terms Conditions and Refund Policy” that was intentionally hidden as dark type on a dark background. You are not supposed to see it.
The terms of the “Free Trial Offer” include:
“….In other words, upon enrollment in the Program, you authorize Company to charge your credit card $4.95 (USD). As a member in the Program, you have 14 days to try the Product (the .Trial Period.). Please note that delivery time is subtracted from your Trial Period, and will reduce the number of days allocated to your Trial Period. If the Product is not right for you, call 1-877-647-3625 during the Trial Period, as long as you return the product in accordance with the time limit described in Section 4, Company will not charge you another dollar. Otherwise, at the end of your Trial Period, as a member in the Program, your credit card will be charged $99.67 (USD) for the Product you already received. Then 30 days from your initial order of the Product (and every 30 days thereafter), you will be sent a new supply of the Product containing 4 packs of cartridges, (A total of 24 cartridges) and your credit card will be charged $79.62 (the .Monthly Fee.). Please note that Florida residents must add sales tax. “
The important point to notice:
1. The 14 day trial period starts from the order date and not form the date you receive the electronic cigarette starter kit.
2. To avoid further charges to your credit card, you must first telephone before the end of the 14 day period to get a Return Merchandise Authorization (RMA) , and as stated in Section 4 (which is actually Section 6) you must “return the starter kit with a Return Merchandise Authorization (a RMA) number within 30 days from the date you placed your order.”
More than a few have been deceived by this. Their first clue that the “Free Trial Offer” is not free is when their credit card gets hit with an unexpected $99.67 charge.
S. Krieger Enterprises LLC d/b/a No Flame E-Cigarette
6538 Collins Avenue #95 (This is a UPS Store mail drop)
Miami Beach, FL 33141
6. CANCELLATION AND REFUND AND EXCHANGE POLICY
If you wish to cancel future deliveries of the Product or receive an RMA number, you must call 1-877-647-3625. If you cancel prior to the expiration of the Trial Period and would not like to be billed for the full amount of the Starter Kit you must return the starter kit with a return merchandise authorization (an .RMA.) number within 30 days from the date you placed your order. If you do cancel within the 14 day trial and do not want to be charged for the starter kit we must receive your starter kit with an RMA number 30 days from the date you placed your order otherwise you will be billed $99.67. If you fail to cancel prior to the expiration of the Trial Period or you fail to return the starter kit with an RMA number within the 30 days from when you placed your order, your credit card will be charged $99.67 for the Product that was shipped to you.
If you cancel after the expiration of the Trial Period, you may receive a refund, but only if the starter kit is received by us with an RMA number within 30 days from the date you placed your order. Refunds will not be given on packages marked .Return To Sender.. All Product returns must be sent to No Flame E-Cigarette. For purposes of calculating the 30 days for this refund/return policy, each Product that is shipped to you after the expiration of the Trial Period is deemed to have been ordered when such Product is billed to your credit card.
Buyer beware. Cavaet emptor. Don’t whine … COMPLAIN!
Federal Trade Cmmission Bureau of Consumer Protection – complaint form online
18 USC § 922(g) “It shall be unlawful for any person . . . (3) who is an unlawful user of or addicted to any controlled substance . . . to ship . . . or possess . . . or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.” http://www.law.cornell.edu/uscode/text/18/922
In some quarters the position has been that no new gun laws are needed. What is needed is to enforce existing gun law. Fine. Lets work with that. It is already illegal for stoners and other illegal drug users to buy or possess firearms. So, how do you enforce that provision of the law? It is nearly impossible to tell an illegal drug user just from outward appearances. Therefore, drug testing each gun buyer is the only reliable method of enforcing this law, right?
There is law that prohibits Federal expenditures not authorized by Congress. It is the Anti-Deficiency Act, Public Law 97-258. This is the law which results in the suspension of government functions when Congress can’t agree on a budget, as happened during the Clinton administration in 1995 and 1996. The language of the Anti-Deficiency Act would not apply as a result of reaching the debt ceiling, even though the government might be shut down due to lack of cash. Nevertheless, the guidelines for essential services may be of value in prioritizing expenditures from available cash flow.
Geeky legal stuff.
According to these federal guidelines agencies should continue activities that:
1.) Provide for the national security, including the conduct of foreign relations essential to the national security or the safety of life and property.
2.) Provide for benefit payments and the performance of contract obligations under no-year or multi-year or other funds remaining available for those purposes.
3.) Conduct essential activities to the extent that they protect life and property, including:
- Medical care of inpatients and emergency outpatient care.
- Activities essential to ensure continued public health and safety, including safe use of food and drugs and safe use of hazardous materials.
- The continuance of air traffic control and other transportation safety functions and the protection of transport property.
- Border and coastal protection and surveillance.
- Protection of Federal lands, buildings, waterways, equipment and other property owned by the United States.
- Care of prisoners and other persons in the custody of the United States.
- Law enforcement and criminal investigations.
- Emergency and disaster assistance.
- Activities essential to the preservation of the essential elements of the money and banking system of the United States, including borrowing and tax collection activities of the Treasury.
- Activities that ensure production of power and maintenance of the power distribution system.
- Activities necessary to maintain protection of research property.
This type of government shutdown happens when there is a budget appropriations impasse for political reasons. The guidelines for what to shut down and what essential governmental services continue is based on the assumption that funds are actually available to pay for those services. The Antideficiency Act prohibits the Federal government from entering into a contract for which the funds have not been appropriated, or not “fully funded” in a legal sense. Doing so would obligate the government in the absence of an appropriation adequate to the needs of the contract. The law does not address the situation in which appropriations have been enacted, but without enough cash in the checking account to pay the bills. Codified at 31 U.S.C. § 1341.
One of the odd things in life is that the U. S. Supreme Court’s 1973 decision in Roe vs. Wade, the one that extended abortion rights as a matter of Constitutional law, was in large part decided upon by resort to a previously unarticulated Constitutional right to privacy in the Due Process Clause of the 14th Amendment. If the Supreme Court revisits and changes the result of Roe, as seems possible, can that be changed without sacrificing the under-pinning of a Constitutional right to personal privacy?
This week Facebook sued Teachbook for trademark infringement, but when I looked into it, the domain Guestbook.com was registered in 1997 to a different company than the one who recently registered the name Guestbook with the USPTO. I’m thinking that whoever has the largest Checkbook can win this game, but what exactly do they end up with? Besides, the lawyers always have the last laugh. They write the Rulebook, which is more of a mystery than it is a Cookbook.
Who was confused and thought that Teachbook.com was run by the same folk that run Facebook.com? Anyone? I whined and laughed about trademarks here.
I have no doubt the world is insane, or at least the people in it are.
Reading the fine print on a bottle of mouthwash today. I’m confident the lable complies with all applicable State and Federal laws and regulations. That’s the insane part.
The mouthwash lable reads:
At the top – Active ingredients:
- 0.092% – Eucalyptol
- 0.042% – Menthol
- 0.060% – Methyl salicylate
- 0.064% – Thymol
At the bottom – Inactive ingredients:
- 21.60% alcohol
I trust everyone understands that it is the 21.6% alcohol in the mouthwast that’s the main active ingredient. It’s the alcohol that kills the germs in your mouth. Pretending that the alcohol is an “inactive ingredient” is just plumb crazy. But, appaarently, it’s legal.