Street Law School: I Signed A Non-Compete Agreement With My Old Employer, Now What?

August 19th, 2013

contractIs your Oklahoma law based non-compete agreement with your old employer enforceable? The short answer is, in all likelihood, “No”.

If you are in Oklahoma the non-compete agreement is not enforceable under 15 O.S. 2001 §219A. With a couple of exceptions, Oklahoma law is clear that a former employee is allowed to work in his or her chosen business or industry even if a piece of paper he signed says otherwise.

Competition is allowed, and Oklahoma law only prohibits a former employee from soliciting the “established customers” of the former employer. An employer who invest its’ resources in training an employee and has disclosed confidential information to the employee still has ways to protect itself. A strong employment agreement providing protection for confidential information and trade secrets goes a long way to protect an employer’s interest. Nevertheless, the Oklahoma Legislature, in utilizing the term “established customer,” clearly had in mind those customers wherein a relationship was ongoing and anticipated to continue into the future. Thus, past and one off customers are fair game. Moreover, if the non-competition agreement fails to properly define its present and established customers, so that they do not stretch to encompass temporary or single-event relationships, the agreement is void and even those customers are fair game.   HOWARD v. NITRO-LIFT TECHNOLOGIES, L.L.C.2011 OK 98273 P.3d 20.

To sum it up, a former employee can compete against his former employer. However, if he signed a carefully worded and strictly limited non-compete agreement, he cannot do it using the employer’s confidential information or “established” clients.

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Thank you.

Brian

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Street Law School: The “Stand Your Ground” Law

August 2nd, 2013

standyourgroundmap_620x350“Stand-your-ground” laws were first adopted in the United States by the State of Florida in 2005. Since 2005, thirty-one states, including Oklahoma, have enacted some form of stand-your-ground law, in which a person is granted certain immunities against the use of deadly force to defend against an “intruder”.

As should be expected, the stand-your-ground law has resulted in the increased use of the defense of “self-defense”, including in the case of the killing of Trayvon Martin. The Zimmerman case focused new attention on the Florida “Stand Your Ground Statute” and the breadth of its protection for individuals who claim to have used deadly force in the face of reasonably perceived deadly force.

Interestingly, there was no pre-trial “Stand Your Ground” Motion to Dismiss in the Zimmerman case. Instead, Zimmerman’s defense waited until trial to present Mr. Zimmerman’s claim of self-defense. So, what is this immunity conferred by the “Stand Your Ground” Statute, how is it different from the trial defense of self-defense, and why didn’t Zimmerman attempt to cloak himself with immunity under the Statute?

Before the stand-your-ground law, a person was not permitted to resort to deadly force in self -defense without first using every reasonable means within his power to avoid danger, including retreat. Now, the stand-your-ground law eliminates the duty to retreat and confers “the right to stand his or her ground and meet force with force, including deadly force if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony.” 776.012 Florida Statutes. In Oklahoma, the law is found at 21 O.S.Supp.2006, § 1289.25.

To make a citizen’s assertion of his right to self-defense independent on any duty to first try to retreat from the danger, the Oklahoma legislature enacted 21 O.S.Supp.2006, § 1289.25(F), which immunizes those who are “not engaged in an unlawful activity”, and are acting in self-defense, from both civil suit and from criminal prosecution. Meaning, a person who claims to have “stood his ground” in the use of force can move to dismiss any case brought against him, civil or criminal, where he can show such force was justified. In the criminal context, a defendant may move for a pre-trial “stand your ground” hearing where he needs only to prove justification for his actions by a preponderance of the evidence. In the Trayvon Martin case, if Mr. Zimmerman had proven he had properly “stood his ground”, the criminal case against him would have been dismissed without the need for a trial.

But, Zimmerman withdrew his request for a pre-trial “stand-your-ground” motion. Why? At the pre-trial hearing, Zimmerman would have had the burden of proving that he properly acted in self-defense by a preponderance of the evidence. At trial, the burden shifted to the State to disprove Zimmerman’s claim of self-defense beyond a reasonable doubt.  This is a difficult burden of proof, especially in cases where there is only one person left to tell what happened.

Zimmerman’s attorneys may have thought that their chance of succeeding at the pre-trial motion hearing was slim, and didn’t want to take a chance that potential jurors would hear that the Judge had rejected the claim of self-defense, thereby possibly leading potential jurors to conclude that the self-defense claim wasn’t credible. As we know, it was a gamble that paid off.

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We Just Split Up And I Am A Single Mother, Do I Need A Custody Order?

July 20th, 2011

There are many reasons some people choose not to get a custody order from a court. Some people decide not to get a custody order because they don’t want to get the courts involved. They may have an informal agreement that works well for them or they may think going to court will provoke the other parent into seeking custody or visitation that they do not already have.

Getting a custody order can give you:

• The right to make decisions about your child
• The right to physical custody of your child (to have your child live with you).

One of the benefits to a custody order is that there will be a specific schedule as to who has the child at what times.  However, it might give the other parent more visitation or custody rights than s/he is using now.  Without a custody order, both parents likely have equal rights to the child.  This assumes that the father’s name is on the birth certificate, or paternity has otherwise been established.  Therefore, it could be possible for the other parent to pick your child up and keep custody from you until there is a custody order that says otherwise.  If that happens, the only way to change this would be to file for custody of your child and to get a court order giving you custody.  If you fear that the other parent would do something like this, you may decide to file for custody to try to prevent a situation like this.  This may be the point at which you should talk to a lawyer about what is best in your situation.

It is important to note that you do not need a custody order to file for child support. If you need child support, the Oklahoma Department of Human Services, Child Support Enforcement Division (CSED) can help obtain a child support order.  If necessary, the CSED could have an administrative hearing and determine paternity by order genetic testing of the mother, child and possible father. They will order that child support be paid to the parent that has present physical possession of the child even without a custody order.

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Changing Your Name in Oklahoma

February 25th, 2011

The procedure for a legal change of name is provided in 12 O.S., Sec. 1631, et seq., and the procedure is the exclusive remedy for a change of name, except for marriage, divorce or adoption. 12 O.S., Sec. 1637

“Any natural person, who has been domiciled in this state or who has been residing upon any military reservation located in said state, for more than thirty (30) days, and has been an actual resident of the county or such military reservation situated in said county, or county in which the military reservation is situated, for more than thirty (30) days, next preceding the filing of the action, may petition for a change of name in a civil action in the district court. If the person be a minor, the action may be brought by guardian or next friend as in other actions.” 12 O.S., Sec. 1631

12 O.S., Sec. 1632 provides the requirements of the Petition for name change.  12 O.S., Sec. 1634 provides that the change of name shall be granted unless the court or judge finds that the change is sought for an illegal or fraudulent purpose, or that a material allegation is false.  Though notice of the hearing of the Petition for name change is required to be given by publication, 12 O.S., Sec. 1633 the request for change of name is seldom contested and this is a proceeding in which most people may appear in court without an attorney.  However, the procedure must be followed exactly and the pleadings should be proper form.

The person requesting the change of name will need to appear in Court one time, not less than ten days after the publication notice of the date of the hearing.

Changing The Name of A Minor

If the Person whose name is to be changed is a minor, then both the minor and the guardian or next friend will need to appear to give testimony at the hearing.  If the person whose name is to be changed is a minor then Notice of the Hearing on the petition to change the name of the minor must be given to the non-custodial parent.  A parent having custody of a child in a divorce action may not have the child’s name changed over the objection of the non custodial parent.  This appears to mean that actual consent of the non custodial parent may not be required – but – Notice of the hearing must be given and if he objects then the name may not be changed.

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Contract Law & Contract Lawyers

November 16th, 2010

Contract law is a branch of the legal sector that deals with the legal binding and exchange of agreements between group or parties; in effect, a contract. A contract can be many things: verbal, written, even action oriented. If you buy a dress, for example, you’re contracted to pay the amount of the dress to the merchant. Our daily lives are full of contracts and agreements, some, like the dress, which we don’t normally think about.

What contract law does is protect, defend and examine contracts made between people, agencies, groups, organizations, etc. It falls under the civil law system and is considered part of laws surrounding obligations, or ‘law of obligation.’

Much of the time, the sector of contract law is concerned with breaches of contracts and solutions to the problems that accompany these breeches. What most people don’t know is that, contrary to what they may believe, an informal contract (one made orally, even lightly) can still be as binding and legal as a written contract.

Contract lawyers deal with everything from the formalities and details of a contract to its ultimate follow through. A contract lawyer will ideally ensure that the contractual terms of the contract are complete and in no way uncertain.

This is highly important because, if the terms of a contract are determined ‘incomplete’ or ‘uncertain,’ the contract is liable for severance. For example, if an agreement was made between two parties, and one party tried to break the contract, they might be successful if the contract is deemed uncertain or incomplete by a court of law.

In order to obtain damages for breaking (breaching) a contract, a person may bring a suit against the contract-breaker by filing a civil lawsuit usually in a state court. However, if the contract contains an arbitration or mediation clause, the parties may petition the court to appoint a private arbitrator or mediator to hear their case.

Hiring a contract lawyer to help you out with this process is well worth your time, as they can help resolve any disputes you have with a contract and conversely, ensure a contract is solid and legal, without any uncertain terms that could be grounds for severance.

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On or About the Night Immediately Preceding Christmas

December 22nd, 2009

MerryChristmasSceneWHEREAS, on or about the night immediately preceding Christmas, there did occur at a certain improved piece of real property (hereinafter “the House”) a general lack of stirring by all creatures therein, including, but not limited to, a mouse.

A variety of foot apparel, e.g., stockings, socks, etc., had been affixed by and/or around the fireplace mantle in said house, in a diligent and workmanlike manner, in the hope, and/or belief, that St. Nick a/k/a/ St. Nicholas d/b/a/ Santa Claus (hereinafter “Claus”) would arrive forthwith. The minor residents, i.e., children, of the aforementioned House were situated on or about their individual beds and were engaged in sleep-induced hallucinations, i.e., dreams, wherein visions of confectionary treats including, but not limited to, candies, nuts, and/or sugar plums, did dance, cavort, frolic, and otherwise appear in said dreams.

Whereupon I (hereinafter “the party of the first part”), being the joint-owner in fee simple of the House with Mamma (hereinafter “the party of the second part”), and the party of the second part had retired for a sustained period of sleep and/or rest. At such time, both parties were clad in various forms of sleepwear and headgear, e.g., night gowns, kerchiefs and/or caps.

Suddenly, and without prior notice or warning, there did occur upon the unimproved real property adjacent and appurtenant to said House, i.e., the lawn, a certain aural disruption of unknown origin, nature, cause or circumstance, that did interfere with the parties’ quiet enjoyment of said property, so much so that the party of the first part did precipitously proceed to a nearby window of said House to investigate the cause of said disruption and disturbance.

At that time, the party of the first part did observe, with some degree of confusion, wonder and/or disbelief, a miniature sleigh (hereinafter “the Vehicle”) being pulled, propelled and/or drawn by approximately eight (8) diminutive reindeer. The driver of the Vehicle appeared to be, and in fact was, the previously referenced Claus.

Said Claus did then provide specific direction, instruction and/or guidance to the approximately eight (8) reindeer and, thus, expressly identified the antlered co-conspirators by name: Dasher, Dancer, Prancer, Vixen, Comet, Cupid, Donner, and Blitzen (“hereinafter “the Deer”). Upon information subsequently received, it is believed and, therefore, further averred that an additional co-conspirator named “Rudolph” may have been involved.

The party of the first part witnessed Claus and the Deer as they intentionally, willfully, and with reckless disregard for the safety of the occupants of the House and other neighborhood dwellings, did trespass upon the roofs of several dwellings located adjacent to and in the vicinity of the House, and it was noted that the Vehicle was heavily laden with merchandise, packages, toys, and other items of unknown origin or nature. Suddenly, and without invitation, permission or license, either express or implied, the Vehicle arrived at the House, and Claus did break, enter, and defiantly trespass upon said House via ingress through and down the chimney.

Said Claus was clad in a red, fur-trimmed suit, which was partially discolorured by charred residue from the interior of the chimney, and he carried a large sack with which he conveyed, transported or, otherwise, asported or carried a portion of the aforementioned merchandise, packages, toys, and other unknown items. He lit and began smoking what appeared to be tobacco, or some unknown substance, in a small pipe in blatant, open and notorious violation of local ordinances and public health regulations and, possibly, The Controlled Substance, Drug, Device and Cosmetic Act.

Claus did not speak, but immediately began to fill the afore-mentioned pre-hung stockings of the minor children with toys, and other small objects, however, said items may or may not constitute “gifts” as that term is defined in the applicable provisions of the U.S. Tax Code.

Upon completion of such task, Claus touched the side of his nose and flew, rose and/or ascended up the chimney of the House to the roof where the Vehicle and Deer waited and/or served as “lookouts” to further aid and abet the alleged nefarious enterprise. Claus then immediately fled and/or departed for an unknown destination, apparently to avoid apprehension. However, prior to said departure of the Vehicle, Deer, and Claus from the House, the party of the first part did hear Claus state, exclaim and/or spontaneously utter: “Merry Christmas to All, and to All a Good Night!”, or words to that effect.

Thanks to Ralph Ostermueller of fvginternational.com for this legalese.

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Happy Thanksgiving

November 25th, 2009

thanksgiving-cor To our clients and to our many friends:

We thank you and wish you a Happy Thanksgiving.

The words of President Lincoln’s Thanksgiving Proclamation ring as true today as they must have in 1863 in the midst of the Civil War:

“It has seemed to me fit and proper that the gifts of God should be solemnly, reverently and gratefully acknowledged with one heart and one voice by the whole American people. I do, therefore, invite my fellow citizens to set apart and observe the last Thursday of November next as a day of thanksgiving and praise to our beneficent Father who dwelleth in the heavens.”

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Veterans Day 2009 – 11 November

November 10th, 2009

Veterans Dayveterans-day

by Cheryl Dyson

On Veterans Day we honor all,

Who answered to a service call.

Soldiers young, and soldiers old,

Fought for freedom, brave and bold.

Some have lived, while others died,

And all of them deserve our pride.

We’re proud of all the soldiers who,

Kept thinking of red, white and blue.

They fought for us and all our rights,

They fought through many days and nights.

And though we may not know each name,

We thank ALL veterans just the same.

Veterans Day is celebrated on 11 November, the anniversary of the signing of the Armistice that ended World War I. The main hostilities of World War I ended on the 11th hour of the 11th day of the 11th month of 1918.

An Act (52 Stat. 351; 5 U. S. Code, Sec. 87a) dated 13th May, 1938, made the 11th of November “a day to be dedicated to the cause of world peace and to be thereafter celebrated and known as ‘Armistice Day’.”  Congress modified this act in 1954, replacing “Armistice” with “Veterans”.  In 1971, the Uniform Monday Holiday Act moved Veterans Day to the fourth Monday of October, and in 1978 it was moved back to the 11th of November.

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Writing Clear and Enforceable Contracts.

September 1st, 2009

Commercial contracts have become increasingly complex in our litigious society. Why can’t contracts just be written in plain language with the common words (and sentence structures) we use in everyday conversation? The truth is – they can! There is no reason that your next contract can’t be clear and enforceable, while at the same time use language that everyone can understand.

Your lawyer can draft a contract in language that can simply express the details of the deal, and in a way that will achieve the legal results desired by both parties. At the same time, your lawyer knows what must be included (and what may be omitted) in a commercial contract. He also has the training and experience to know how the contract will be interpreted should a dispute arise down the road.
Key Points:
• What Is the Business Deal?
• How Do You Turn the Deal Into the Contract?
• Say What You Mean and Mean What You Say!

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Have You Had Your Legal Checkup Lately?

August 29th, 2009

698914It happens every year. My doctor’s office, calls to tell me I need to schedule an appointment. Why?  Because it is time for my annual check-up. I always forget.  That’s ok, that’s why my doctor’s office is calling me. I make the appointment and I appreciate the reminder.

So, where am I going with this?  No, I’m not suggesting that every one of my clients call to book yearly appointments with their attorney. What I am suggesting is that, if it has been some time since you have taken stock of the legal matters affecting your life, perhaps it is time for that legal checkup.

Doctors recommend periodic checkups. While it might not seem as important, a “legal checkup,” which is often called “preventive law” is also improtant. Getting a legal checkup can keep you in good legal health and save you money by identifying small legal problems before they become large ones.  A legal checkup is a review, with your lawyer, of your most important legal matters, papers, and areas of your life.  Like illnesses, many legal problems can be cured or even avoided if found early.

There are several steps in a legal checkup. The first is collecting important legal papers (see below for more information on which papers to keep). Just locating important papers can help prevent future trouble. So can discovering that one or more is missing. Reviewing papers can remind you of things you’ve forgotten to do or of questions to ask.

The next step in your legal checkup is analyzing your current legal situation in light of your goals. Some areas you will want to pay particular attention to are:

Will and estate planning

Do you have key estate planning documents like a will and living trust?  Having these documents helps you make sure your property will go where you want when you die and that your heirs will receive the property in the fastest and least expensive manner.  It also provides other benefits, including letting you select who you want to be guardian of your children in case you and your spouse die while they are minors, and letting you select the person to administer your estate when you die.

Proper estate planning includes more than just having a will and living trust. It also includes making sure you have the necessary documents to make sure your medical and financial decisions are made by the people you want if you become incapacitated, and that your wishes regarding the use of life-prolonging equipment will be known in case it’s ever needed.

Even if you have all necessary estate planning documents, it is important to make sure they are up-to-date. If your will and other documents were made a long time ago, changes may be needed due to increased wealth, changes in your marital status, the addition of new children or grandchildren, death of heirs, changes in your wishes about who should receive your property, and changes in tax laws. For example, reviewing a will you made long ago could reveal the need to make an amendment which can be done at low cost. However, if you die without updating your will, an expensive dispute could arise between family members.

Insurance

Do you have enough and the right kinds of insurance coverage? Liability, casualty, property, life, long-term care and disability insurance provide more than just peace of mind. They provide you money to soften the blow of a disaster. They help pay your legal defense costs if you are sued. Good insurance is key to good legal health.

Closely related to insurance is the need to keep good records of your personal property in the event you suffer a fire or other disaster.  Your personal property records should be kept in a safe place, and should include as much information as possible about the property, including descriptions, purchase receipts and photos.

Property Ownership

How you hold title to property has important consequences. It affects what happens to the property if you separate, divorce or die, it controls who has power to make decisions about the property, it has important tax consequences, and it determines whether or not creditors can reach it.  In many cases, people hold property in a form of title that is contrary to their goals. A key part of a legal checkup is making sure title to all your assets — including your home, car, stocks, bonds and bank account — is held in the proper form.

Contracts

Contract disputes can be expensive and time-consuming. However, there are easy preventive measures to reduce the risk of being involved in them. One is to put all important agreements in writing. Though the law allows both oral and written contracts, certain kinds of contracts must be in writing to be enforceable. Also, oral contracts are riskier, because there’s no clear evidence of the terms or that they were even made. Putting key agreements in writing — and making sure any oral modifications to existing written agreements are also put in writing — can help avoid costly legal problems.

Another easy way to help avoid legal problems from contracts is to read and understand every contract before signing it. Because of time constraints, or for other reasons, many people do not follow this rule. Unless there’s a legal basis for canceling a contract (such as fraud or misrepresentation), a court usually won’t change a contract, even if it has many one-sided provisions in small print. When you read a contract, if you are unsure about anything, seek legal help.

Important Papers

Keep your important records in a safe location, like a bank safe deposit box.  In addition to you (and your spouse) knowing where these documents are, you should inform someone you trust, like your lawyer. Some of the main documents you should have in a fireproof location are:

• birth certificate

• adoption papers

• marriage and divorce records

• military discharge (DD-214)

• immigration records

• insurance policies

• deeds to property

• stock certificates, bank and retirement account records

• income tax returns

• will, trust, living will and other estate planning documents

Finances

Financial problems are at the root of many legal problems. If you are having trouble paying bills, you should consider available options for getting a fresh start.  A lawyer has the skills to negotiate debt settlements on your behalf.

Small Business Books and Records

Articles of Incorporation/Organization; Certificates of Limited Partnership: Are they still accurate? Do they provide maximum protection from liability?

Bylaws/Operating Agreements/Partnership Agreements: Do you have them? Do you follow them? Should they be revised to conform to your actual practices? Have all owners signed off on them?

Buy-Sell Agreements/Shareholder Agreements: Do you have one? Do you need one? Have all owners signed off on it? Is it current? Does the valuation mechanism still work? Does it require annual valuations? If so, is your valuation current?

Stock/Membership Certificates/Registry: Who has the original certificates? Do you have an accurate current registry?

Meeting Minutes (including Annual Minutes) and Biennial Reports: Do you have periodic meetings and keep written minutes? Do you have annual minutes? Are they current? Have you filed your most recent Biennial Report?

Certificates of Authority to Transact Business: Do you have one? Do you need one? Is it current?

Subsidiaries and Affiliates: Do you need any? If you have any, do you keep separate books and records and financial statements?

Registered Agent/Registered Office: Do you have one? Do you need one? Is it current?

Like checkups for your physical health, a regular examination of your legal health can keep you fit as well. If your legal affairs are in good condition, your checkup will involve recommendations to keep them that way.  If your legal affairs are in poor condition, Huddleston Law Offices will alert you to problems you might miss on your own.  Attached is a LEGAL HEALTH CHECK-UP CHECK LIST I have prepared to help you assess whether you need to schedule a legal checkup.

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