Email Spam - What Businesses Should Know

Legitimate businesses run the risk of violating anti-spam laws when emailing customers and prospects. What are email spam laws? For a good overview, see Commercial Email - Getting It Right.

Published by: admin on July 30th, 2008 | Filed under Internet Law
Comment now »



Minnesota Recording Act

Minn. Stat. 507.34 UNRECORDED CONVEYANCES VOID IN CERTAIN CASES.
Every conveyance of real estate shall be recorded in the office of the county recorder of the
county where such real estate is situated; and every such conveyance not so recorded shall be
void as against any subsequent purchaser in good faith and for a valuable consideration of the
same real estate, or any part thereof, whose conveyance is first duly recorded, and as against any
attachment levied thereon or any judgment lawfully obtained at the suit of any party against the
person in whose name the title to such land appears of record prior to the recording of such
conveyance. The fact that such first recorded conveyance is in the form, or contains the terms
of a deed of quitclaim and release shall not affect the question of good faith of such subsequent
purchaser or be of itself notice to the subsequent purchaser of any unrecorded conveyance of the
same real estate or any part thereof.

Minn. Stat. 508.48 INSTRUMENTS AFFECTING TITLE FILED WITH REGISTRAR; NOTICE.
Every conveyance, lien, attachment, order, decree, or judgment, or other instrument or
proceeding, which would affect the title to unregistered land under existing laws, if recorded, or
filed with the county recorder, shall, in like manner, affect the title to registered land if filed and
registered with the registrar in the county where the real estate is situated, and shall be notice to
all persons from the time of such registering or filing of the interests therein created. Neither the
reference in a registered instrument to an unregistered instrument or interest nor the joinder in a
registered instrument by a party or parties with no registered interest shall constitute notice, either
actual or constructive, of an unregistered interest.

Minn. Stat. 508A.48 FILED INSTRUMENT AFFECTING TITLE IS NOTICE.
Every conveyance, lien, attachment, order, decree, or judgment, or other instrument or
proceeding, which would affect the title to unregistered land under existing laws, if recorded,
or filed with the county recorder, shall, in like manner, affect the title to land registered under
sections 508A.01 to 508A.85 if filed and registered with the registrar in the county where the real
estate is situated, and shall be notice to all persons from the time of the registering or filing of
the interests therein created. Neither the reference in a registered instrument to an unregistered
instrument or interest nor the joinder in a registered instrument by a party or parties with no
registered interest shall constitute notice, either actual or constructive, of an unregistered interest.

Published by: admin on January 31st, 2008 | Filed under Property Law
1 Comment »



None of Your Business: Marital Interests in Closely Held Companies

By Phyl Bean

“Business is a combination of war and sport.” French author André Maurois probably wasn’t thinking about equitable division of business interests in a marital dissolution when he made that statement, but it applies nonetheless. Valuation and distribution of business interests have fueled many “divorce wars,” and will no doubt continue to be a hotly litigated issue for couples for whom the bloom is off the rose. Determination of the marital v. non-marital nature of a business, valuation of the business, resolution of issues regarding whether growth of a partly non-marital business interest is marital or non-marital, and establishment of what constitutes “income” to a party from a business interest are a few of the issues commonly disputed in a divorce situation. This article will examine the unique characteristics of a family business in the context of a divorce involving one of the shareholders. The intent is to give the practitioner creative techniques for advising clients who own an interest in a small business, who intend to convey an interest in a family business, or who are considering purchasing or starting a small business.1

What Is the Business’s Value?

To calculate the present value of a party’s non-marital interest in a closely held business entity, a value must first be assigned to the business. The Minnesota Supreme Court in Nardini v. Nardini, 414 N.W.2d 184, 189-190 (Minn. 1987), gave some guidance on this issue, but cautioned, “There is, of course, no universal formula for determining the value of a closely held business. No matter how experienced and objective the appraiser, the valuation of a business is an art, influenced by various subtle and subjective factors.” Nardini, however, offers some tangible guidelines on what a business valuation must include, if it is to be given significant weight by the trial court. The Nardini court set forth the following eight factors as a starting point for determining the value of a business: Read the rest of this entry »

Published by: admin on January 11th, 2008 | Filed under Business Law, Divorce
1 Comment »



How to Value a Closely Held Business in Minnesota

How do you value a closely held business? Phyl Bean, a Minnesota attorney, recently answered this question and discussed how to handle closely-held businesses in the divorce context.

The Minnesota Supreme Court in Nardini v. Nardini, 414 N.W.2d 184, 189-190 Minn. 1987, gave some guidance on this issue, but cautioned, “There is, of course, no universal formula for determining the value of a closely held business. No matter how experienced and objective the appraiser, the valuation of a business is an art, influenced by various subtle and subjective factors.” Nardini, however, offers some tangible guidelines on what a business valuation must include, if it is to be given significant weight by the trial court. The Nardini court set forth the following eight factors as a starting point for determining the value of a business:

1. The nature of the business and the history of the enterprise from its inception;

2. The economic outlook in general, and the condition and outlook of the specific industry in particular;

3. The book value of the stock and the financial condition of the business;

4. The earning capacity of the company;

5. The dividend-paying capacity;

6. Whether or not the enterprise has goodwill or other intangible value;

7. Sales of the stock and the size of the block of the stock to be valued; and

8. The market price of stocks of corporations engaged in the same or a similar line of business having their stocks traded in a free and open market.

Further, the Nardini court stated, “In any case, a sound valuation requires not only the consideration of all relevant facts but also the application of common sense, sound and informed judgment and reasonableness in the process of ‘weighing those facts and determining their aggregate significance.’”

You can read the entire article here: None of Your Business: Marital Interests in Closely Held Companies.

Published by: admin on December 19th, 2007 | Filed under Business Law, Divorce
Comment now »



Copyright & Trademark for Blogs and Domain Names

Many bloggers and webpage designers have questions about trademarks and copyrights. I found a great resource that answers the following questions frequently asked about blogs and websites:

  • When can I copy from another website?
  • Can I use images from someone else’s blog?
  • Someone is using my website images, text, or domain name. What can I do about it?
  • What are improper ways to compete with other websites?
  • If a website doesn’t use a trademark or copyright symbol, does that matter?
  • If I give credit to someone, can I copy their stuff?
  • And much more.

One of the most useful aspects of this guide is it addresses many of the “myths” believed by bloggers and web designers. You can quickly scan the page for the myths and read the answer if you are curious about the topic. To get answers to many frequently asked questions regarding copyright and trademark, visit this valuable resource prepared by attorneys: Intellectual Property Law Primer for Multimedia and Web Developers.

If you have questions not covered by this guide, feel free to leave them in the comments here.

If you need to complain to Google to have content removed, see this example of a Google removal letter. See also Google DMCA, Google Cease and Desist, Google Legal Phone and Address.

Published by: admin on November 30th, 2007 | Filed under Copyright Law, Internet Law, Trademark Law
3 Comments »



Minnesota State Court Case Records Online

Minnesota state court docketing information is now partially available online. The information is not exactly the same as what you get when you search MNCIS at the courthouses, but it still should be useful. Here is the description from the site:

Minnesota District Courts offer an online case inquiry tool for statewide electronic case records, called MPA Remote, which stands for Minnesota Trial Court Public Access Remote view. MPA Remote is a public-view version of the Minnesota Court Information System (MNCIS), the computerized case management system used by Minnesota District Courts to track and manage cases. MPA Remote contains replicated public case data from MNCIS. Upon inquiry, MPA Remote displays case information for public viewing, including register of actions, calendars, judgments, and orders and notices prepared by the court.

Partial Access

The information available is somewhat limited. From the www.mncourts.gov website:

Courthouse public access terminals provide the most complete access to electronic district court case records, because they are not restricted by the remote access provisions of the Rules of Public Access (see Rule 8, subd. 2). For example, street addresses and name searches for pre-conviction criminal case records are available at courthouse public access terminals, but not through the online case inquiry, as described above.”  Also, you can’t do attorney searches via MPA, but you can via the courthouse terminals.

Additionally, the MPA system is based on the MNCIS system (MN Court Information System).  Dakota County records and Ramsey criminal records are not yet part of this system.  Dakota records move to MNCIS at the end of February and Ramsey criminal records move the weekend of April 11, 2008.  Those records are currently only available at their respective courthouses.

Visit the site: Access Minnesota District Court Case Records

Published by: admin on November 20th, 2007 | Filed under Internet Resources
Comment now »



Legal Resources at Bench & Bar of Minnesota

When looking for useful collections of Minnesota legal resources, the articles at the Bench & Bar of Minnesota deserve attention.

The articles at the Bench & Bar of Minnesota are especially useful to lawyers and those interested in Minnesota law. The articles are almost always written by attorneys who specialize in the area of law in which they are writing.

Thus, the articles at the Bench & Bar of Minnesota are very helpful if they are on the topic which you are researching.

Unfortunately, although there are many articles covering many topics, the articles cover only a small percentage of the legal subjects in Minnesota.

But if you are lucky enough to find the topic you need, these articles are a gold mine.

Visit the Minnesota Bench & Bar articles by subject, volume, or author.

Published by: admin on November 19th, 2007 | Filed under Internet Resources
Comment now »



Legal Subrogation or Equitable Subrogation in Minnesota

What are the legal standards for legal subrogation or equitable subrogation in the context of interests in property under Minnesota law?

Owners of interests in property are subject to the Recording Act when determining the priority of their interest or lien on a property. An equitable action for legal subrogation or equitable subrogation is available in certain situations when an application of the Recording Act would be unjust.

I.        Terminology and General Principles

Equitable subrogation is properly called “legal subrogation,” and is distinct from the other type of subrogation, “conventional subrogation.”  These terms and general principals were discussed in Universal Title:

While subrogation is generally defined as ‘the substitution of one person in the place of another with reference to a lawful claim or right,’ 73 Am.Jur.2d Subrogation § 1 (1974), there are actually two distinct types of subrogation, ‘conventional subrogation’ and ‘legal subrogation,’ which is often confusingly called ‘equitable subrogation,’ due to its origin and basis in equity. Conventional subrogation ‘occurs where one having no interest or any relation to the matter pays the debt of another, and by agreement is entitled to the rights and securities of the creditor so paid.’  Id. § 9.  Legal subrogation, however, ‘has for its purpose the working out of an equitable adjustment and the doing of complete and perfect justice between the parties by securing the ultimate discharge of a debt by the person who in equity and good conscience ought to pay it.’  Id.  § 3 (footnotes omitted). Unlike conventional subrogation, legal subrogation does not depend on contract, assignment, or privity.  Id.  In either case, however, the right to subrogation is predicated on the full payment of the debt or claim of another by one who is not a mere volunteer or intermeddler. See City of Red Wing v. Eichinger, 163 Minn. 54, 203 N.W. 622, 623 (1925); 73 Am.Jur.2d Subrogation § 11.

Although legal subrogation is a highly favored doctrine, it is not an absolute right, but rather, one that depends on the equities and attending facts and circumstances of each case. See, e.g., Compania Anonima Venezolana de Navegacion v. A.J. Perez Export Co., 303 F.2d 692, 697 (5th Cir.1962). In general, the equity of the party seeking subrogation must be clear and substantial, and superior to that of other claimants. Finally, subrogation cannot be invoked where it would work an injustice, violate sound public policy, or result in harm to innocent third persons.

Universal Title Ins. Co. v. United States, 942 F.2d 1311, 1315 (8th Cir. 1991) (footnotes omitted).

II.        Legal Standards

The legal standards for equitable subrogation were recently provided in Ripley v. Piehl:

Minnesota has long recognized the doctrine of equitable subrogation. See, e.g., Emmert v. Thompson, 49 Minn. 386, 52 N.W. 31 (1892).  Under the doctrine, a person who has discharged the debt of another may succeed in substitution to the rights and position of the satisfied creditor. First Nat’l Bank of Menahga v. Schunk, 201 Minn. 359, 363, 276 N.W. 290, 292-93 (1937); Wells Fargo Home Mortg., Inc. v. Chojnacki, 668 N.W.2d 1, 5 (Minn. Ct. App. 2003).  ‘This equitable principle will be applied in the interest of substantial justice . . . [when] one party has provided funds used to discharge another’s obligations if (a) the party seeking subrogation has acted under a justifiable or excusable mistake of fact and (b) injury to innocent parties will otherwise result.’  Carl H. Peterson Co. v. Zero Estates, 261 N.W.2d 346, 348 (Minn. 1977) (footnote omitted).

.  .  .  .

Jurisdictions around the country have adopted three different approaches in determining whether to apply equitable subrogation under circumstances in which a third party holds a lien on the property at the time the second lender pays off the former encumbrance. . . . The second approach bars the application of equitable subrogation when the party seeking subrogation possesses either actual or constructive notice of an existing lien. See, e.g., Harms v. Burt, 30 Kan.App.2d 263, 40 P.3d 329, 332 (2002).

.  .  .  .

Minnesota has adopted the second approach (actual or constructive notice of an existing lien bars equitable subrogation) with the added criterion that when a sophisticated party-such as a professional lender-is seeking subrogation, it will be held to a higher standard for the purpose of determining whether it has acted under a justifiable or excusable mistake of fact in failing to duly investigate prior liens.

Ripley v. Piehl, 700 N.W.2d 540, 545 (Minn. Ct. App. 2005) (refusing to grant equitable subrogation).

Published by: admin on November 18th, 2007 | Filed under Actions in Equity, Property Law
Comment now »



Effect that Actual Knowledge has on BFP Status under Torrens Property Law

Question: Can a buyer of Torrens property be a bono fide purchaser (BFP) if the buyer had actual knowledge of a prior conveyance?

Answer: No.

A person with actual knowledge of a prior conveyance cannot be a bona fide purchaser of Torrens property under Minnesota law.  The Torrens statute provides that

[e]very person receiving a certificate of title pursuant to a decree of registration and every subsequent purchaser of registered land who receives a certificate of title in good faith and for a valuable consideration shall hold it free from all encumbrances and adverse claims, excepting only the estates, mortgages, liens, charges, and interests as may be noted in the last certificate of title in the office of the registrar. . . .

Minn. Stat. § 508.25 (2004).  This statute, and specifically the term “good faith,” was interpreted by the Minnesota Supreme Court in 2007:

We conclude that under section 508.25, a purchaser of Torrens property who has actual knowledge of a prior, unregistered interest in the property is not a good faith purchaser.

In re Collier, 726 N.W.2d 799, 809 (Minn. 2007).

Published by: admin on November 15th, 2007 | Filed under Property Law
Comment now »



Wikipedia - Useful for Legal Research?

Occasionally Minnesota Law references information on Wikipedia. Any self-respecting lawyer will tell you that Wikipedia is not a reliable source of legal information. So why link to it?

The Case Against Wikipedia as a Legal Reference
There are numerous news reports of errors, omissions, and intentional misinformation on Wikipedia. Since people may make important legal decisions based on the information they read, Wikipedia should never be referenced to provide legal information.

The Case For Wikipedia as a Legal Reference

On the other hand, Wikipedia has some very useful information for non-lawyers and lawyers alike. Wikipedia’s information on the law can be a useful starting point because it provides an overview and often includes useful references.

Why Minnesota Law References Wikipedia

Minnesota Law seeks to provide general information about the law rather than legal guidance for specific individuals’ legal problems, and Wikipedia is a useful resource on certain subjects. While Wikipedia entries may change after linking to them, the value basic information contained in Wikipedia entries seems to offset the occasional problem of inaccurate information. Like a less reliable AmJur, Wikipedia provides general information that can aid in the initial stages of research.

Although Wikipedia is referenced on Minnesota Law, readers certainly should use caution in relying on the information. In fact, all online information deserves that scrutiny.

Consult a Lawyer Before Relying on Online Legal Information

Most importantly, readers of Minnesota Law are urged to discuss a legal matter with a lawyer in their jurisdiction, because the law has many exceptions that only a competent lawyer can identify and apply to your situation.

Published by: admin on November 10th, 2007 | Filed under Secondary Authorities
Comment now »



Can I Copy Another Blogger’s Text?

Copying the entire post of another blogger and putting it in your blog is copyright infringement, even though bloggers rarely enforce their rights. Copying parts of another’s writing and passing it off as your own (such as editing it a bit) is also copyright infringement.

However, you normally can quote a portion of another’s writing in order to discuss it yourself. The quoted portion should be a small percentage of the entire written work.
Copyright infringement includes statutory damages, which means that even though you didn’t harm the person whose text you copied, if found to have infringed, you will be liable for damages anyway. Damages levels will be between $750 and $30,000 per infringement, at the discretion of the court.

Statutory damages provided in the U.S. Code under Title 17, Section 504.

You may also be interested in these resources:

Published by: admin on November 8th, 2007 | Filed under Copyright Law, Internet Law
Comment now »



Trademarks and Domain Names

If you use a trademarked term in your domain name, are you infringing the trademark? Not necessarily.

If you are largely selling the product covered by the trademark, you may not be infringing according to the case of Ty Inc. v. Ruth Perryman, 306 F.3d 509 (7th Cir. 2002). In this case, the owner of www.bargainbeanies.com sold used Beanie Babies.

The general idea is that resellers must be able to use the name of the products they are selling, even if the products are trademarked. But resellers cannot misuse a trademark by using a domain name with a trademarked term and then generally providing other products instead.

A number of other cases have discussed similar circumstances with varying outcomes:

  • Anlin Indus., Inc. v. Burgess, No. 1:05cv1317 DLB, 2007 WL 715687 (E.D. Cal. Mar. 5, 2007)
  • Fargo Elecs., Inc. v. Iris Ltd., Inc., No. 04-1017 (JRT/FLN), 2005 WL 1431653 (D. Minn. Mar. 8, 2005)
  • Avlon Indus. v. Robinson, No. 01 C 3615, 2005 WL 331561 (N.D. Ill. Feb. 8, 2005)
  • Avlon Indus. v. Robinson, No. 01 C 3615, 2003 WL 22025004 (N.D. Ill. Aug. 27, 2003)

To learn more about Ty Inc. v. Ruth Perryman, you may read it or read this article by an attorney explaining the trademark and domain name issues in the case.

You may also be interested in this news article addressing this important trademark domain name issues presented in the Beanie Babies case: Reseller wins right to use TM in domain name.

You may also be interested in reading this post, Copyright & Trademark for Blogs and Domain Names, the Anticybersquatting Consumer Protection Act, or an FAQ regarding Domain Name Disputes.

Published by: admin on November 2nd, 2007 | Filed under Internet Law, Trademark Law
Comment now »



Introduction to Minnesota Law .TV

Minnesota Law is a site dedicated to helping people and attorneys in Minnesota find legal information and resources quickly.

A Warning about Minnesota Law .TV

Minnesota Law .TV is edited by a licensed Minnesota attorney as a hobby. Please note that this site is informational, and you should seek an attorney’s advice regarding how this information applies to your situation. Also, while every attempt is made to provide accurate information, you should have an attorney verify any information here before you rely on it.

Minnesota Law Features

In the days ahead, Minnesota Law will provide information about legal topics, local attorneys, law firms, and other legal resources.

The site will also provide a list of resources to the most useful primary and secondary authorities for legal research.

Stay tuned.

Published by: admin on October 29th, 2007 | Filed under News
Comment now »