Acceptance: The 2nd Element Needed in Order to Constitute a Binding Contract

handshake-220233_960_720In my 1st blog dealing with contracts, I covered 1st element of a contract which is “Offer”.

As I noted there are 5 basic elements needed in order to constitute a binding contract. These elements are: (1) offer; (2) acceptance; (3) consideration; (4) mutuality of obligation meaning both parties must be bound to perform their obligations; (5) competency and capacity to enter into a contract.

Today, we will deal with the 2nd element, “Acceptance”. “Acceptance” is defined as:

An express act or implication by conduct that manifests assent to the terms of an offer in a manner invited or required by the offer so that a binding contract is formed. The exercise of power conferred by an offer by performance of some act. The act of a person to whom something is offered or tendered by another, whereby the offeree demonstrates through an act invited by the offer an intention of retaining the subject of the offer. In essence, “acceptance” is one person’s compliance with the terms of an offer made by another. It occurs in the law of insurance when an insurer agrees to receive a person’s application for insurance and to issue a policy protecting the person or company against certain risk, such as fire or theft. (more…)

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Schlafly Brewery Shows How to Make a Sour Blonde: Wins Trademark Dispute Against Phyllis Schlafly

imagesNMPCHZK7It is not often that craft beer lovers and ordinary St. Louisans will take interest in a trademark dispute. However, one such case caught the attention of both demographics. In this regard, long-standing conservative activist, Phyllis Schlafly, and her son, Dr. Bruce S. Schlafly, filed oppositions to the application filed by the St. Louis Brewery, LLC (manufacturers of Schlafly beer) to register the word SCHLAFLY for use in connection with beer products. The Schlaflys filed separate notices of opposition to the brewery’s registration of the mark on the ground that the word SCHLAFLY is primarily merely a surname under the trademark law and had not acquired distinctiveness to be eligible for registration. As an intellectual property attorney and an aficionado of good beer, this case really sparked my interest (As a person familiar with Schlafly products since 1991, I have to confess some bias). Nevertheless, the oppositions struck me as legal backwash.

In a decision that surprised no one who has remotely followed the craft beer industry, on August 4, 2016, the Trademark Trial and Appeal Board of the United States Patent and Trademark Office dismissed the oppositions filed by the Schlaflys. (more…)

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Questions on the Patenting Process

light-bulb-outline--ideas-symbol_318-36120I frequently speak with individuals who believe they have come up with a new invention and want to protect it with a patent, but have no idea of how to go about obtaining a patent. The patenting process can be complicated if it is not something you deal with day-to-day. The following are some questions on the patent process I frequently hear.

First of all, what is a patent? I sometimes speak with individuals who believe they must first get a patent for their invention before they can make and sell the invention. That is not entirely accurate. The patent is a right granted by the United States Government to an inventor to exclude others from making, using, offering for sale, or selling the inventor’s invention throughout the United States or importing the inventor’s invention into the United States for use or sale. The right is granted by the government for a limited period of time in exchange for the inventor publicly disclosing the invention in the granted patent. Note that the right is granted by the United States Government and therefore the patent only has effect in the United States. I at times get questions on whether a United States patent has any effect in other countries, for example Canada, which it does not. (more…)

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Will Your Startup’s Name Lead You To Trademark Litigation?

Trademark_iStock_000012651602MediumLet’s start out with a scenario that may be familiar to some of you. You’re starting a new company, or launching a new brand for your existing company. You have everything planned, even down to the brilliant name that you envision being mentioned in the same breath as Google, Facebook, and Twitter in the future. You think you’re ready to hit the ground running and put your company’s name and logo out there so your potential customers and investors can become familiar with your company.

Even with your detailed planning, have you done everything you should have done before you start using your company’s name or logo? If you haven’t given thorough consideration to the trademark issues relating to the name you plan to use, you could be setting yourself up for trouble. (more…)

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EEOC Study of Workplace Harassment Urges Employers to Do More Prevention

EEOC sealRecently, the Equal Employment Opportunity Commission (“EEOC”) issued the results of a study of workplace harassment.  The agency convened a task force to conduct this study in January 2015.  The task force issued a report in June 2016. Task Force Report.  It concluded that since the Supreme Court recognized that Title VII of the Civil Rights Act prohibits sexual harassment as a form of employment discrimination 30 years ago, “we have come a far way since that day, but sadly and too often still have far to go.”   The report addresses not only sexual harassment, but also workplace harassment claims based on any one or more of race, disability, color, age, national origin, ethnicity, or religion.

Workplace Harassment Poses a Very Real and Costly Business Risk

The task force’s study examined the current scope of unlawful harassment in American workforces.  It noted that about one-third of the nearly 90,000 discrimination charges filed with the EEOC in fiscal year 2015 included workplace harassment allegations.  Those filing harassment charges represent the tip of the iceberg, because “[r]oughly three of four  individuals who experienced harassment never even talked to a supervisor, manager, or union representative about the harassing conduct.”  The report identifies the following reasons for the underreporting of unlawful harassment claims:  fear of disbelief of claims, fear of inaction on complaints, blame, ostracism, or retaliation.  Workers, instead, develop their own work-arounds, such  as avoiding the harasser, denying or downplaying the seriousness of the situation, ignoring, forgetting, or enduring the behavior.  It finds the filing of a discrimination charge or pursuit of formal action through an employer’s complaint procedure to be “the least common response to harassment.” (more…)

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Non Qualified Deferred Compensation Arrangements Under Section 409A

imagesON0V86EZA plan or arrangement containing non qualified deferred compensation features may have to comply with the requirements of Section 409A of the Internal Revenue Code. Non qualified deferred compensation features can be present in any plan or arrangement which provides payment for services subsequent to the year in which the services are performed. A contract providing, for example, that an employee will be paid on December 31, 2017 for performing services for his or her employer in 2016 could be subject to Section 409A. Non qualified deferred compensation features can be in bonus plans, employment contracts, plans and arrangements for the payment of retirement benefits, phantom stock and stock appreciation plans, discounted stock options, separation and retention plans, post retirement fringe benefits, certain types of split dollar life insurance arrangements, top hat plans, Section 457(f) plans, change of control agreements and similar plans and arrangements. (more…)

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Justice Scalia’s Passing Grants Unexpected Reprieve to Beleaguered Lending Regulation

images1UOJVI04Did the Federal Reserve Board overstep its authority when it defined someone who guarantees the debt of another as an “applicant” for credit? It’s an issue seemingly about as sexy as watching white paint dry. Still, of all the cases on the U.S. Supreme Court’s docket during the 2015–2016 term, which was so defined by the unexpected death of Justice Antonin Scalia in February, the one that stood out most to me was Hawkins v. Community Bank of Raymore, a case that boiled down to exactly that question. That’s because Hawkins touched on so much more than what an “applicant” is or is not.

What Is Reg. B, and Why Does It Matter?

Hawkins originated in Missouri and concerned validity of Regulation B (“Reg. B”), a federal lending regulation under the Equal Credit Opportunity Act (“ECOA”) intended to guard against marital discrimination in credit transactions. Reg. B protects applicants for credit who meet a lender’s creditworthiness requirements individually from being forced to procure their spouse’s guaranty on the debt, and it arguably protects the guarantors themselves as well. In other words, if an obligor can show the only reason she was required to obtain a personal guaranty from her spouse was because she had a spouse, she likely has a defense under Reg. B. (more…)

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There is a New Federal Law Protecting Your Company’s Sensitive Information!

images36RAPLVDOn May 11, 2016, a new federal law protecting trade secrets (the “Defend Trade Secrets Act”) went into effect. Prior to the law going into effect, remedies for trade secret theft were governed by the laws of the various states, which laws often provided for a lack of uniformity in enforcing trade secret protections. The new federal law has many facets to it, but the major change brought about by the law is that now, companies that have been the victim of trade secret theft have the option of suing under the federal statute, which allows for federal court jurisdiction and should provide for more uniformity in trade secret protection. (more…)

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Brownfields Can Mean Green

images7WDUIHPLIt’s an election season once again and jobs are in the forefront. There are real opportunities in those Brownfields to create jobs, particularly in areas which are disadvantaged. For example, “the Missouri Brownfields program awards various tax credits to businesses that remediate properties and create a specified number of jobs. In 2006 a study was performed to determine the investment value of 50 redeveloped sites. The study concluded that the total investment on the property was $2.2 billion. Approximately, 11,053 full-time jobs were created. Nearly 160 thousand tons of contaminated materials were removed, and 686 acres were successfully developed. Equally important, twenty-three historical buildings were returned to use.” Schmittgens, Eugene P. (2014) The Politics of Environmental Regulations: What Happened to Market Based Regulations? (Master’s Thesis) pp. 38-39. (I guess it’s OK to cite my own research) (more…)

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Should Your Closely-Held Corporation Have an Advisory Board?

boardA closely-held corporation can benefit from having an outside director with special expertise (e.g., strategy, marketing, HR, technology, finance and international business). However, potential outside directors are often reluctant to take on the role of a director of a closely-held corporation because of fiduciary obligations and other potential liabilities (e.g., environmental, employment discrimination, unpaid wages, unpaid taxes and regulatory liability).

A corporation can derive many of the benefits of an outside director, while avoiding many of the problems, by appointing an advisory board. An entrepreneur with a closely-held business may also be reluctant to dilute authority with outside directors, but may be comfortable with an advisory board which renders advice but has management authority or responsibility. (more…)

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