When most individuals think of a trademark, they think of words, logos, or other symbols used to identify a particular brand. But color is also a critical aspect of brand identity and can be protected under trademark law. Read on to understand how you can own colors and if you can sue other corporations for using certain colors.(more…)
Trademarks have existed since the medieval age. Even though the process of trademarking has changed over time, the fundamental purpose remains. Trademark protects businesses and their products or services from being copied or imitated by others.
A trademark helps consumers differentiate between products or services in the market and can also symbolize the quality of a business’s goods or services. But for a trademark to be effective, you must register it with the relevant authorities.
Trademark registration can be complex and confusing, and even a slight mistake could cost your business dearly. Here are some common mistakes people make when applying for a trademark and how to avoid them.(more…)
Every entrepreneur should consider incorporating a lawyer onto their team in the modern business world. For example, a business must comply with various legal aspects before operating. For example, when you select the correct type of business entity you want to set up and choose your business name, a business attorney can help.
However, you may also realize that you still need a business attorney as the business goes forward. A business attorney helps you protect your business investments, prevent misunderstandings with your partners, and protect you from personal liabilities for business debts and legal obligations.
A business attorney protects your business interests, understands how to file legal documents for your business, knows the pros and cons of a legal situation, and generally understands the law. A business attorney can prevent you from making legal mistakes. Below are five reasons you should hire a lawyer for your business.(more…)
Corporations may spend a lot of time and money interviewing and selecting the best employees. For example, the company has to craft job descriptions, advertise the job opening, and shift through many applications. In addition, you may have to interview the shortlisted candidates and choose the most qualified person. Therefore, the company may lose a lot if this process were to halt due to legal problems.
This blog post explores the reasons you should hire an attorney to shield your business during the hiring process.(more…)
Buying into a franchise is one of the best ways to make huge profits in business. However, franchising may quickly become a regrettable decision without proper planning and preparation. That’s why you’ll find it best to take measures to protect yourself from any undesirable consequences.
Franchise agreements are challenging to navigate for someone new to the franchising business. Business persons who have been franchisors also need assistance working through franchise contracts.
One of the best things you can do to ensure your franchise deal moves smoothly is seek legal assistance. This article looks at four reasons why it is best to hire a lawyer when buying a franchise.
1. A Franchise Lawyer Helps You Assess the Franchisor
When buying a franchise, you will encounter a franchise disclosure document (FDD). The FDD contains pertinent information about the franchisor. Some information included in the FDD includes:
• The franchisor’s litigation history
• The franchisor’s financial statements
• Franchise owners’ obligations
• Supplier restrictions
• Trademark and copyright rules, etc.
You must read a franchise agreement before you sign it. However, the FDD is a hefty document, and you may have difficulty evaluating it on your own. An attorney works with a team that can review the hefty document and gives you a breakdown of the franchisor’s information.
With this information, you can decide whether or not to continue with the transaction.
2. A Franchise Lawyer Helps You Understand the Franchise Agreement
A franchise lawyer has appraised multiple franchise agreements. Therefore, they know to look into the fine print.
The person selling you the franchise will have their legal team prepare an agreement that protects them. Thus you need to ensure the terms of the contract are favorable to you. When an attorney looks over your franchise agreement, you can trust them not to miss important details.
Your attorney looks into contract clauses discussing your roles and obligations. They also consider the terms addressing the timelines for contract termination and consequences for terminating the contract before the agreed time.
Thus, with a franchise lawyer by your side, you are sure of the terms you sign in the franchise agreement.
3. An Attorney Advises You on What Works and What Doesn’t
An experienced franchise attorney knows the pros and cons of different franchise set-ups. Thus they advise you on the best way to set up your franchise.
If you are unsure whether investing in a franchise is the best choice for you, your attorney helps you evaluate the risks of the franchise to make an informed decision. They also help you choose the right legal entity for your franchise.
Because your attorney represents you, they look after your best interests. Thus, they give you more information than the party selling the franchise will. If your attorney has dealt with the franchisor, they may even give you insider information.
4. A Franchise Attorney Saves You Money
Not hiring an attorney when making a franchise deal may save you money in the short term. However, it leaves you vulnerable to future losses. Remember, a successful transaction does not eliminate the chance of future disputes.
Ideally, you could anticipate all potential disputes and include resolution measures in the franchise agreement before signing it. Otherwise, you will spend a lot of time and litigation fees resolving disputes in the future.
As a novice franchise owner, you’d be hard-pressed to spot all the clauses in a franchise agreement that may cause future problems. A franchise lawyer has extensive knowledge of franchise contracts. They leverage their knowledge to devise solutions to problem areas before they become costly disputes, thus saving you money in the long run.
You need an experienced franchise attorney if you want a good outcome in your franchise deal, and the franchise attorneys at Mohajerian are the best. Contact us today for legal assistance on your franchise deal in California.
CA’s Mandate Ends
In mid-May 2021, California Governor Gavin Newsom announced that the state’s COVID-19 safety mandates would be extended until June 15. But now, businesses are free to open without capacity restrictions or physical distancing limitations and fully-vaccinated persons are no longer required to wear masks in buildings. Rumors persisted that the state would keep the mask mandate in place even after reopening but this announcement brings the state into alignment with the newest Center for Disease Control guidance. This is welcome news to California franchises, which have faced numerous challenges just keeping the lights on in the wake of the pandemic and subsequent year-long lockdown. Without capacity restrictions and physical distancing requirements, franchises can finally open up and go back to making money once again. California has also brought its statewide travel guidelines into compliance with current CDC guidance, opening up even more avenues for business.
Rebuilding after a Lost Year
After more than a year of forced closures, limited capacity reopenings, and minimal foot traffic, California franchises can start to see a light at the end of the tunnel. It goes without saying that the global and local economies suffered greatly during the pandemic and, sadly, the lack of a steady stream of business caused many longtime franchises to permanently close. However, franchisors of all types can now begin rebuilding with California fully reopening for business. Allowing a return to full capacity means that restaurants finally have their full complement of tables and do not have to worry about vaccinated patrons being turned off by having to wear masks while dining. Storefronts and boutique shops are seeing an increase in foot traffic as the state reopens and people feel safe to venture out of their homes and start spending money again. Car supply and auto parts businesses look forward to increased revenues as more people return to working in offices and thus need to maintain their vehicles for the commutes. Even movie theaters look set to make a comeback with people also ready to pick up old leisure activities after the isolating shutdown. As you can see, the move to full capacity will have a positive effect on franchises of all types and franchisors must be ready.
Ready For Business
With California’s reopening, franchisors have begun to prepare for the huge increase in business. They should ensure that their franchise is fully staffed at this point to handle the uptick and that all workers understand what the changing guidelines mean for customers. Franchisors should also expect changes from customers as some guests may continue to wear masks indoors as a precaution, even though it is no longer mandated by the state. Finally, franchise owners should begin planning for a brighter future.
Filed Under: Franchise & Distribution
San Diego and SDG&E Reach Agreement
On May 25, 2021, the San Diego City Council voted 6-3 to approve a franchise agreement between the city and San Diego Gas & Electric. SDG&E, an energy utility that provides gas and electric services, is a subsidiary of Sempra Energy, which is likewise based in San Diego. The agreement means that SDG&E will continue to provide energy services to San Diego residents for the next 10 years and includes an option to extend the agreement an additional 10 years. The franchise agreement was approved after a lengthy debate and public comment by 120 citizens. In exchange for providing energy, SDG&E will be paid $80 million to cover the franchise agreements while an additional $30 million will be allocated to help meet the City’s climate-related goals. In the end, the City Council and SDG&E determined that the deal, which was negotiated by Mayor Todd Gloria, was too good to pass up. The agreement has several out clauses and also allows for the city to purchase SDG&E from Sempra at the going rate and municipalize the utility under public oversight. Though the agreement is new, SDG&E has held exclusive franchise agreements to provide energy services with San Diego for over 100 years.
In Spite of Agreement, Questions Remain
Although the City and SDG&E agreed on an $80 million franchise fee for providing energy services, they are still at odds over other issues and outstanding franchise agreements. In January 2020, the City of San Diego sued SDG&E for more than $35 million after the City had to pay to move the utility company’s equipment during the Pure Water project. Then, after the previous energy services franchise agreement expired in January 2021, the two sides began bickering over SDG&E’s progress in burying power lines across the city. San Diego’s city attorney’s office has claimed that SDG&E was both overcharging for its services in burying the power lines and had engaged in a purposeful slowdown on the project while waiting for the new franchise agreements to be signed. SDG&E, however, claimed that they were not authorized to work on burying the lines after the prior franchise agreement expired, but some in the City saw that as little more than an excuse. Indeed, some members of the City Council expressed concerns that San Diego was agreeing to a massive, new franchise fee with SDG&E while the two parties are engaged in litigation over Pure Water and a contentious standoff over burying the power lines.
In spite of these outstanding issues, the City voted in favor of the new $80 million franchise agreement after it received support from a broad cross-section of individuals and groups, including San Diego residents, politicians, union members, and local business interests. A massive deal of this kind can only mean good things for other businesses and entities looking to sign franchise agreements in the State of California in the future.
Filed Under: Franchise & Distribution
Two Flexible Work Schedule Bills
With America reopening in the wake of the covid-19 pandemic, employees are returning to the office after working remotely for more than a year, but some may not be able to come back for various reasons. In order to ease the transition for all parties involved, two bills were recently introduced before the California legislature that would give employers and employees the power to agree to mutually-beneficial flexible work schedules. The two pieces of legislation, Assembly Bill 230 and Assembly Bill 1028, introduced in January and February 2021, respectively, would create a narrow new exception to the existing 8-hour overtime rule by giving employees the right to request a remote, flexible work schedule of up to four 10-hour days per week. However, under this new arrangement, the employer would not be required to pay increased overtime wages for the 9th and 10th hours of each workday as is normally required by state law. AB1028 would also allow employees working these flexible schedules more leeway when planning their meal and rest breaks throughout the workday. With the introduction of these bills, it seems clear that California is prepared to give both employers and employees additional benefits to make flexible work schedules easier to create and maintain.
Give and Take
While AB230 and AB1028 would put more power into the hands of employees by giving them the ability to request remote, flexible schedules, it should be noted that employers are not required to approve the request and that nothing introduced in either AB230 or AB1028 is mandatory. Additionally, the flexible work schedule may be discontinued at any time by either the employer or employee giving notice to the other party, so it’s not a permanent imposition. Further, employers who agree to a flexible work schedule are no longer required to pay the overtime rate unless the employee works more than 10 hours in a day or 40 hours in a week, which provides some economic relief and incentive. So these bills would not be all bad for employers as they provide some impressive carrots for employers who have the capacity to allow their employees the opportunity to work remotely.
Though employers may be skeptical of such changes and allowing more employees to work remotely, it must be noted that AB230 and AB1028 are both still pending in the California Legislature. Both bills have been referred to the Committee on Labor and Employment where they will be subject to further debate and scrutiny by committee members before an eventual vote is taken and AB 1028 has also been referred to the Committee on Judiciary. All of this means that the bills face some hurdles and could be changed or outright rejected before the full legislature ever gets a chance to vote on them. In the meantime, employers should consider the possible impact of this legislation when making plans for how and when they will let employees who can’t return to the office work remotely.
Filed Under: Labor & Employment
In late April, the Ninth Circuit Court of Appeals handed down a ruling that could have massive implications for lab
or law in California, especially for the trucking industry. In a major ruling, the Ninth Circuit reversed the district court’s preliminary injunction against California’s Assembly Bill 5, finding that the law is not preempted by the Federal Aviation Administration Authorization Act. The FAAAA preempts any state law that is “related to a price, route, or service of any motor carrier… with respect to the transportation of property.” However, the Ninth Circuit found that AB5 is a labor law of general applicability that “does not bind, compel, or otherwise freeze in
to place the prices, routes, or services of motor carriers” and is therefore not preempted by federal law.
Passed in 2019, AB5 codified and expanded the California Supreme Court’s three-pronged ABC test used to determine whether a worker is classified as an employee or an independent contractor. Following this, the California Trucking Association amended an existing complaint in federal district court to file suit to halt implementation of AB5 in the state. The CTA, which represents independent trucking companies, aka motor carriers, and 70,000 drivers who operate as independent contractors, claimed that AB5 was preempted by federal law because it would force members to be reclassified as employees after they voluntarily opted to classify as independent contractors. The district court, agreeing that the CTA was likely to succeed on the merits of its claims and that enforcement of AB5 was likely to have an effect on prices, routes, and services, granted an injunction against the implementation of AB5. The State of California then appealed the case to the Ninth Circuit.
The Ninth Circuit’s Ruling
The 2-1 ruling, authored by Circuit Judge Sandra S. Ikuta, a George W. Bush appointee, the Ninth Circuit reversed the lower court’s injunction. Although AB5 would raise costs for trucking companies by forcing them to hire more employees to remain compliant, the court held that this is not enough to cause federal preemption. Instead, the majority relied on Ninth Circuit precedent to find that the effect of AB5 would not interfere to the point where “it compels a result at the level of the motor carrier’s relationship with its customers or consumers.” The court further rejected the CTA’s claims that AB5 must be preempted because implementation would cause some small trucking companies to shutter and force others to leave the state, leaving the remaining companies providing “diminished services.” The majority stated that Ninth Circuit precedent isclear and that it has consistently rejected arguments that state law must be preempted by federal law on the basis of these kinds of “indirect effects” on the trucking industry. Circuit Judge Mark J. Bennett, a Donald Trump appointee, provided the lone dissent, stating that AB5 “significantly impacts the services motor carriers provide to their customers” and should thus be preempted. The ruling in California Trucking Association v. Bonta now paves the way for implementation of AB5 in California.
Source: CA Trucking Assoc. V. Bonta, https://cdn.ca9.uscourts.gov/datastore/opinions/2021/04/28/20-55106.pdf
Filed Under: Labor & Employment
Gig Companies Take Another Blow in the Courtroom
Earlier this year, gig economy companies operating in California lost another lawsuit seeking to allow them to determine questions of gig worker classification via private arbitration instead of using the courts. On April 22, the Second Appellate District of the Court of Appeals of the State of California invalidated an arbitration provision in Uber’s contracts that would have waived the right for workers to file a suit against the company under California’s Private Attorney General Act. Uber argued that this contractual provision meant that issues such as gig worker misclassification and labor law violations must first be decided in arbitration before the worker could sue under PAGA, but the courts once again declined to adopt this position. With this loss, Uber joins other gig companies like Zum Services and Skip Transport, both of which have previously failed to halt PAGA lawsuits on the basis of contractual arbitration waivers. With this series of courtroom setbacks, it appears that gig companies operating in California will be faced with the possibility of incurring significant liability if workers take them to court under PAGA.
What is The Private Attorney General Act?
Codified in 2004, California’s PAGA is an expansive law that allows “aggrieved employees” to file lawsuits on behalf of themselves, other employees, and the State itself for violations of California’s labor laws. Despite the fact that private individuals bring the claim themselves, California courts have routinely held that a PAGA lawsuit is not “an individual action at all, but instead is one that is indivisible and belongs solely to the state.” Indivisibility is key because gig companies have repeatedly argued that worker classification questions are “threshold issues” that must be settled first to determine whether the worker is indeed an aggrieved employee or simply an independent contractor. Further, gig companies argue that any such threshold issues should be decided in private arbitration according to contractual provisions because independent contractors have no standing to sue under PAGA in the first place. However, California courts have rejected this argument outright, finding that there are no divisible threshold issues in PAGA cases and that courts, not private arbitration, should determine whether the aggrieved employee was actually aggrieved and actually an employee. Likewise, courts have found that a worker’s right to file a PAGA lawsuit cannot be waived and that any arbitration provision that seeks to do so is unenforceable and invalid.
What Does it Mean for Companies?
Uber’s loss in the courtroom appears to be even more evidence that California courts will protect a worker’s right to sue under PAGA, regardless of any possible threshold issues. Gig companies operating in California should be aware of the increased risk and potential liabilities they face from PAGA lawsuits and that contractual waivers appear to be unenforceable in the state. However, it is unknown how Proposition 22, the voter-approved ballot initiative that exempts most gig workers from the state’s worker status laws, will affect existing and future PAGA lawsuits going forward.
Filed Under: Labor & Employment