Alexson Law http://alexsonlaw.com Mon, 11 Dec 2017 17:55:49 +0000 en-US hourly 1 https://wordpress.org/?v=4.8.4 Abusive Conduct and Sexual Harassment Training For Bank Supervisory Employees http://alexsonlaw.com/abusive-conduct-sexual-harassment-training-bank-supervisory-employees/ http://alexsonlaw.com/abusive-conduct-sexual-harassment-training-bank-supervisory-employees/#respond Mon, 11 Dec 2017 17:46:44 +0000 http://alexsonlaw.com/?p=723 I have been getting calls about sexual harassment training so I thought I would post a short reminder of the statutes and requirements in California.  California Government Code Section 12950.1 requires that employers train all supervisory employees in sexual harassment and abusive conduct prevention every two (2) years.  If an employee is promoted to a […]

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I have been getting calls about sexual harassment training so I thought I would post a short reminder of the statutes and requirements in California.  California Government Code Section 12950.1 requires that employers train all supervisory employees in sexual harassment and abusive conduct prevention every two (2) years.  If an employee is promoted to a supervisory employee, they must be trained within six (6) months of the promotion.   Effective January 1, 2018, this statute will also include harassment based on gender identity, gender expression and sexual orientation as a new protected class. Abusive Conduct and Sexual Harassment Training For Bank Supervisory Employees

This training requirement applies to companies that regularly employ (or contract to employee) at least fifty (50) employees.  The 50 employees do not all have to be located in California.  The California Code of Regulations [2 Cal Code Regs 11024 (a) (8)], defines “supervisory employee” as any individual with authority to hire, transfer, suspend, layoff, promote, discharge, assign, reward or discipline other employees.  It is a fairly broad definition that includes the concept of independent judgement as a requirement for job performance.

The training must be done by trainers or educators with particular expertise in this area and must deal with a variety of modalities, such as classroom training, e-learning with links to “live trainers” and webinars.  The covered topics are specifically described under 2 Cal Regs Section 11024 (a) (2) and include the following.

  1. Information and guidance on federal and state law concerning the prohibition and prevention of harassment;
  2. Information on correction of the problem and available remedies and
  3. Examples drafted to suggest how supervisory employees are to prevent, harassment, discrimination, retaliation and abuse in the workplace environment.

The advice I have given to my bank, mortgage companies and specialty lending firms clients is that now is a good time to review and upgrade compliance training programs.  This compliance update process must include all necessary corporate and regulatory compliance changes, including, but not limited to revising employee manuals and looking at ways the compliance information is kept and disseminated within the company.  I have also advised my clients that training in profit centers such as loan documentation, etc. can also help to minimize risk in the institution.

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Recruiting and Nurturing Talent and the High-Expertise Women http://alexsonlaw.com/recruiting-nurturing-talent-high-expertise-women/ Tue, 24 Oct 2017 16:51:54 +0000 http://alexsonlaw.com/?p=718 Lately, there has been a vocal conversation about women’s’ workplace issues, including, but not limited to, sexual harassment, equality in compensation, work-life balance and advancement in the leadership structure.  Large law firm practice is still difficult for women, especially when they are raising families, as the traditional financial and leadership models make it difficult for […]

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Lately, there has been a vocal conversation about women’s’ workplace issues, including, but not limited to, sexual harassment, equality in compensation, work-life balance and advancement in the leadership structure.  Large law firm practice is still difficult for women, especially when they are raising families, as the traditional financial and leadership models make it difficult women lawyersfor women to advance.   It is also clear that women in the large law firm environment do not necessarily speak as one “voice”.  Issues of work/life balance, family care issues, pay and skill sets can vary by a woman leader’s experience.  Therefore, there is an argument to be made that more experienced women are needed in leadership roles, as partners, managers, recruiters, of-counsel and expert staff counsel.

A women in a high-status role at a firm, armed with experience and expertise can be a benefit for lawyers of other generations, as she can serve as a role model, a mentor and a teacher in her practice area.  High-status, experienced women experts in their field can provide a new way to lead through positive reinforcement, incentives and innovative approaches to attract talent to and to manage and nurture that talent.

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LLC Change for California Business Owners and Bankers http://alexsonlaw.com/llc-change-california-business-owners-bankers/ Thu, 19 Oct 2017 16:58:48 +0000 http://alexsonlaw.com/?p=715 LLCs now can file their Statements of Information online with the California Secretary of State.   You can also request to  a pdf copy of the filed Statement of Information by email.   Effective January 1, 2018, California Corporations Code Section 2000(a)  will provide that it is acceptable that the “contrary provision in the articles” be […]

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LLCs now can file their Statements of Information online with the California Secretary of State.   You can also request tCalifornia business law changes and updateso  a pdf copy of the filed Statement of Information by email.

 

Effective January 1, 2018, California Corporations Code Section 2000(a)  will provide that it is acceptable that the “contrary provision in the articles” be a reference in the articles of incorporation to a separate written agreement between two or more shareholders pertaining to the purchase of shares. It will not be necessary for the articles to set forth the terms relating to the shares. This provision relates to a shareholder buyout, when there is a proceeding for voluntary or involuntary dissolution. 

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Legal Assist For Victims of Hurricane Harvey http://alexsonlaw.com/legal-assist-victims-hurricane-harvey/ Fri, 08 Sep 2017 20:06:53 +0000 http://alexsonlaw.com/?p=707 Volunteering Legal Advice Aiding Texas Hurricane Victims My firm signed up with the American Bar Association relief effort to assist victims of Hurricane Harvey with question relating to missed mortgage payments and relief from foreclosure and other servicer remedies.  We are working with the Texas Bar Association to support the Texas Bar in this time […]

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Volunteering Legal Advice Aiding Texas Hurricane Victims

My firm signed up with the American Bar Association relief effort to assist victims of Hurricane Harvey with question relating to missed mortgage payments and relief from foreclosure and other servicer remedies.  We are working with the Texas Bar Association to support the Texas Bar in this time of need.

hurrican relief legal help

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What Is Reverse Veil Piercing In California http://alexsonlaw.com/reverse-veil-piercing/ Thu, 07 Sep 2017 15:40:58 +0000 http://alexsonlaw.com/?p=704 I am writing a book for the entrepreneur on seven (7) legal principles for owning and acquiring a business.  The second chapter explores entity structuring when you start a business and/or acquire assets (or stock) for a growth strategy.  So, why do we want to own a business in a legal structure such as a […]

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I am writing a book for the entrepreneur on seven (7) legal principles for owning and acquiring a business.  The second chapter explores entity structuring when you start a business and/or acquire assets (or stock) for a growth strategy.  So, why do we want to own a business in a legal structure such as a corporation or a limited liability company?  The reason is that if an owner properly complies with corporate compliance, such as record keeping, not mixing corporate and personal funds, etc., then if the business is sued, and the creditor (or other party) obtains a judgement, then such judgement creditor cannot execute the judgement against the personal assets of an owner, meaning a shareholder or a member of a limited liability company.  So, reverse veil piercing (in California) would mean that a judgement is received against an individual owner, and the judgement creditor attempts to execute the judgement against a corporation or limited liability company owned by the judgment debtor.

A recent California case, Curci Investments, LLC (Curci LLC”) v. Baldwin (“B”) (August 10, 2017 GO52764) illustrates the issue of “reverse piercing”.  In this case, Curci obtained a multi-million dollar judgement against B, then tried to financial law practicejoin B’s LLC as a judgment debtor to satisfy the judgement.  The California trial court denied the motion of joinder.  The fact are briefly stated as follows.  B formed JPBI, A Delaware LLC (“JPBI”)  to hold personal investments and cash balances (for him and his spouse.)   B  owned 99% of the membership interests and his wife held 1% of the membership interests of the Baldwin personal LLC. B was the manager and CEO of JPBI.  About 2 years later (on or about 2009), B, individually borrowed $5.5 million from Curci LLC’s predecessor- in- interest. . The loan was memorialized in a promissory note executed by Baldwin and the managing member of Curci’s predecessor (the “Curci note)”. In the Curci note, Baldwin agreed to pay back the principal amount of the loan, with interest, by January 2009. Curci was assigned the lender’s interest in the Curci note shortly after it was executed. One month after executing the Curci note, Baldwin settled eight family trusts to provide for his grandchildren during and after their college years (the family trusts). Not long after the family trusts were settled, JPBI loaned a total of approximately $42.6 million (the family notes) to three general partnerships (the family partnerships) formed by Baldwin for estate planning purposes. Because the partners of the family partnerships are various combinations of the family trusts, certain of Baldwin’s children signed the family notes in their capacity as trustees. Baldwin signed the family notes in his capacity as manager of JPBI. Each family note indicated the principal amount of the loan was to be repaid by July 2015. Although all the family notes are in favor of JPBI, Baldwin and his wife list them as “Notes Receivable” on their personal financial statements.

When the Curci note was due and payable, B did not make the payments required under the terms of the note.    Curci LLC, filed suit, against B for $7.2 million including, prejudgment interest and attorney’s fees and costs in 2012.  By 2014, B had not paid the judgement, so the court granted charging orders against other B entities including JPBI.  So the monetary distributions that were to go to B would go to Curcu LLC.

During the time of the outstanding note, JPBI had paid about $178 million to B and his spouse, so Curci LLC then filed a motion in 2015 to add JPBI as a judgement debtor.  Please note that B argued that Postal Instant Press (162 Cal App 4th 1510), was applicable based upon the holding that third part creditors cannot reach corporate assets to satisfy a personal judgement.  In the Posta case, the entity at issue was a corporation.  However, the court in this case held that the Postal holding was limited to corporations and this entity was a limited liability company.  The court also reasoned that B and his spouse were not “innocent” parties. Most importantly the court reasoned that the entity structure was different, with different statutory requirements and that creditor have different options against a limited liability company.

What we learn from this case, is the analysis for “the pierce the corporate veil doctrine” will be similar when looking at these entity structures but could come out with a different result.    In this case, it appears the promissory note could have been structured to include the proper parties, or, the creditor could have taken collateral to secure the note.    My goal with the entrepreneurial client is to be sure the proper entity structuring is done at the early growth stage, for issues, including but not limited to, liability protection.  For example, if my client operates under a license (such as a real estate broker), a limited liability structure may not be available, depending upon the jurisdiction.  Therefore, there are also many legal and business to address in the emerging growth states.

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Paying Your Credit Card By Phone; What Are The Fees? http://alexsonlaw.com/paying-credit-card-phone-fees-warnings-from-cfpb-to-services/ Mon, 21 Aug 2017 18:16:27 +0000 http://alexsonlaw.com/?p=697 A compliance bulletin discussing fees charged to consumers to pay-by-phone (“Bulletin dated July 31, 2017”) was published by  The Consumer Financial Protection Bureau (the “CFPB”),    The CFPB stated that these fees may amount to unfair, deceptive or abusive acts or practices known as “UDAAP”.  UDAAP practices are prohibited by federal law under 12 USC 5531 […]

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A compliance bulletin discussing fees charged to consumers to pay-by-phone (“Bulletin dated July 31, 2017”) was published by  The Consumer Financial Protection Bureau (the “CFPB”),    The CFPB stated that these fees may amount to unfair, deceptive or abusive acts or practices known as “UDAAP”.  UDAAP practices are prohibited by federal law under 12 USC 5531 and under state law.    As a general practice, financial services providers offer consumers several ways to make payments, including pay-by-phone options.    Pay-by-phone options provide for different payment alternatives such as using an automated phone option or making a payment with a customer service representative.    The Bulletin dated July 31, 2017 discusses providers that charge consumers pay-by-phone fees and/or expedited phone payment fees which are not consistent.

The Bulletin dated July 31, 2017 states the following practices may be classified as UDAAPs:

  1. A recent action was noted, in which the CFPB alleged that a financial services provider deceptively identified a $14.95 pay-by-phone fee to consumers as a “processing” charge.  In actuality, the provider charged consumers this fee for the service of posting the consumers’ payment to his/her account the same day, when in fact many consumers did not need their payments to post to their accounts on the same day.  This could be misrepresentation of a fee or cost.
  2. Under this action, no-cost payment alternatives existed, but the provider had failed to make consumers aware of these no-cost payment alternatives. The provider did not make the consumer aware of this option.
  3. The Bulletin dated July 31, 2017, also noted that many providers rely on their telephone customer service employees to disclose all pay-by-phone fees and available options to consumers, and do not disclose upfront in writing their fees or pay-by-phone options. According to the CFPB, the failure by employees to inform consumers about substantial price differences between pay-by-phone options may “substantially harm” consumers. Consumers may utilize more expensive pay-by-phone options if not advised that other options are available.

The conclusions from this Bulletin are that a provider cannot misrepresent a fee or cost of a phone payment, fail to disclose a no-cost option and/or fail to make adequate consumer disclosures about these options.  We have advised our clients to review the disclosures given in connection with loan and credit card payment options, both written and given by the customer services representatives.

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September ABA Speaking Event for Harriet B. Alexson, Esq http://alexsonlaw.com/september-aba-event-harriet-b-alexson-esq/ Thu, 03 Aug 2017 17:33:40 +0000 http://alexsonlaw.com/?p=692 I will be presenting at the Loan Documentation Subcommittee at the  American Bar Association Annual Business Section meeting in Chicago held from Sept. 13-17, 2017.  My presentation will discuss a recent SBA loan transaction and tips for modification of the loan documents.  Also covered is the release of a guarantor under the SBA 7 (a) […]

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ABA Business Law Event 2017

I will be presenting at the Loan Documentation Subcommittee at the  American Bar Association Annual Business Section meeting in Chicago held from Sept. 13-17, 2017

My presentation will discuss a recent SBA loan transaction and tips for modification of the loan documents.  Also covered is the release of a guarantor under the SBA 7 (a) loan program.  Our roundtable presentation will be at the Sheraton Grande Hotel on Thursday, September 14, 2017 from 3-4:30 CT.

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CFPB Final Rule Prohibiting Class Action Waivers in Arbitration Clauses http://alexsonlaw.com/cfpb-final-rule-prohibiting-class-action-waivers-arbitration-clauses/ Tue, 01 Aug 2017 08:30:30 +0000 http://alexsonlaw.com/?p=689 On July 10, 2017, the Consumer Financial Protection Bureau (CFPB) issued a final rule prohibiting class action waivers in predispute arbitration clauses contained in covered consumer financial services agreements. The four primary provisions of the final rule are as follows: Under the final rule, a “predispute arbitration agreement” is defined as: “an agreement between a […]

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On July 10, 2017, the Consumer Financial Protection Bureau (CFPB) issued a final rule prohibiting class action waivers in predispute arbitration clauses contained in covered consumer financial services agreements.

The four primary provisions of the final rule are as follows:

Under the final rule, a “predispute arbitration agreement” is defined as: “an agreement between a covered person . . . and a consumer providing for arbitration of any future dispute concerning a consumer financial product or service described below.

  1. The prohibition on class action waivers would apply to arbitration agreements with respect to:
    1. Most types of consumer “credit” governed by the Equal Credit Opportunity Act and Regulation B, including but not financial law practicelimited to consumer credit cards, lines of credit, small-dollar or payday loans, private student loans and certain auto loans;
    2. Checking and other deposit and share accounts subject to the Truth in Savings Act (TISA);
    3. Certain auto leases;
    4. Consumer debt relief services for all types of consumer debts (whether arising from secured or unsecured consumer credit transactions, or consumer debts that do not arise from credit transactions – such as medical or tax debts);
    5. Providing consumers with consumer reports and information specific to a consumer from consumer reports (such as by providing credit scores and credit monitoring);
    6. Remittance transfers subject to the Electronic Funds Transfer Act (EFTA);
    7. Transmitting or exchanging funds, including receiving currency, monetary value, or payment instruments from a consumer for purposes of exchanging or transmitting by any means, including, among other things, wire, facsimile, electronic transfer, the Internet, or through bill payment services or business that facilitate third-party transfers;
    8. Payment processing activities that involve accepting financial or banking data directly from the consumer for initiating a payment, credit card, or charge card transaction;
    9. Consumer check cashing, check guaranty, and check collection services; and
    10. Debt collection activities related to the types of consumer financial transactions listed above.  See Section 1040.3(a).
  2. The rule also requires covered providers to include a specified plain-language provision in their arbitration agreements disclaiming the agreement’s applicability to class actions.

The CFPB’s final rule may be viewed at:  http://files.consumerfinance.gov/f/documents/201707_cfpb_Arbitration-Agreements-Rule.pdf

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Seven Legal Issues For Every Business Owner http://alexsonlaw.com/seven-legal-issues-every-business-owner/ Mon, 24 Jul 2017 10:15:02 +0000 http://alexsonlaw.com/?p=684 I am working on a book that every business owner will want to have on the shelf! The topic relates to the legal strategies I have helped clients initiate to launch and/or grow a successful  business.  My passion has always been a concern for access to credit for the small, emerging and growth business.  Recently, […]

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I am working on a book that every business owner will want to have on the shelf!

The topic relates to the legal strategies I have helped clients initiate to launch and/or grow a successful  business.  My passion has always been a concern for access to credit for the small, emerging and growth business.  Recently, I have noticed there is also a legal services access issue.  This book is written based on my years of experience and my concern about these marketplace issues.  My draft outline is shared below.  If you have any suggestions to expand the scope, please sent me a message.

  1. Entity Structure
  2. Intellectual Property
  3. Licenses and Regulation
  4. Acquiring an existing business
  5. Operations
  6. Expansion- strategic alliances and business combinations
  7. Commercial Loan Products

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Alexson Law Volunteer Engagement With GLSA http://alexsonlaw.com/alexson-law-volunteer-engagement/ Mon, 24 Jul 2017 09:15:05 +0000 http://alexsonlaw.com/?p=678 Harriet B. Alexson has been invited to be a contributor to the Group Legal Services Association (“GSLA”) Blog and  Newsletter.  GLSA is a nonprofit, ABA-affiliated organization for those involved in the legal services plan industry, which delivers legal services to a broad range of clients.  GLSA provides the legal services plan community with education, support, […]

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Harriet B. Alexson has been invited to be a contributor to the Group Legal Services Association (“GSLA”) Blog and  Newsletter

GLSA-volunteer

GLSA is a nonprofit, ABA-affiliated organization for those involved in the legal services plan industry, which delivers legal services to a broad range of clients.  GLSA provides the legal services plan community with education, support, collaboration and advocacy. GLSA members are committed to providing affordable access to legal services. I have always been an advocate for access to credit  for the entrepreneur, emerging and growth business.  These legal services can assist the emerging business.

*pictured is GLSA logo

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