Legal TBC

Concerned about the growing violent turn that Occupy Wall Street protests are taking, the president of the New York Police Department’s Sergeant’s Benevolent Association (SBA) released a statement after the Oakland incident announcing that lawsuits would be pursued against anyone who injured a police officer during the protest. President Ed Mullins indicated that more than 20 police officers had already been injured by the protestors and that he had instructed attorneys for the SBA to pursue the harshest possible civil sanctions against anyone causing injuries, including seeking monetary damages.

One of the biggest obstacles for parties wishing to sue for an injury sustained during a protest is a legal doctrine called assumption of the risk. This legal doctrine essentially states that if you do something known to be dangerous, you cannot then file a lawsuit if you suffer harm from the danger you were aware of before you acted.

Arguments have been made that police and firefighters assume the risk of danger when they go into their chosen careers. In fact, many court decisions have held that police cannot sue because of the assumption of the risk doctrine, and many states have passed statutes to that effect. Collectively, the rule against police lawsuits for injuries became known as a legal doctrine called the “fireman’s rule” or “professional rescuers rule.”

However, some states determined that, while police might assume some risks, they should not be barred from bringing civil lawsuits in all claims. In California, for example, California Civil Code Section 1714.9 carves out an exception to the fireman’s rule allowing police officers to sue if a person willfully causes harm and if: 1) he knew the police officer was there; 2) his conduct violates a law and was not the reason that the police officer was called to the scene in the first place; and/or 3) the conduct was specifically intended to injure the police officer.

Under these rules, it seems clear that police officers could sue Occupy Wall Street protestors if those protestors are aware that police have been called in and if they willfully choose to harm the police officers responding to the call. The police, will, of course, have to prove that the personal injury case falls within the exceptions listed in the California Civil Code, explains a lawyer in the state.

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Amway has been in business for over 50 years. And just like many other companies that have been around for that long, they have had their fair share of legal issues. Of those legal battles they have had, most of them are about product liability or distributor disputes. However, not one of those legal battles has affected the tremendous growth that has occurred within Amway.

As an example, in 1997, Amway sued a polish film maker for libel. The film, Welcome to Life, purportedly defamed Amway, showing a misleading and libelous version of what muli-level marketing was all about. Amway Poland was able to obtain an injunction, preventing the film’s release, and subsequently Amway won the lawsuit.

Other relatively minor legal battles have involved some Amway distributors using copyrighted music on promotional tapes – these usually do not affect the company as a whole and most have been settled out of court. But another type of legal battle gets at the heart of what MLM is…

**Landmark decisions**

Is MLM, and Amway specifically, a pyramid scheme? In other words, is the business model illegal from the start? This is when the big time legal battles started. Losing a challenge on this subject would mean, not just fines, but a complete shutdown of operations – maybe even jail time.

Well, in 1977, Amway was subjected to just such a challenge. The US Federal Trade Commission (FTC) started investigating Amway for deceptive business practices and the charge was essentially one of operating a pyramid, or Ponzi, scheme.

The crux of the issue was this, was Amway trying to make money just from recruiting distributors or was the main business model to sell products. This is a serious charge in a serious venue – the FTC had the power to completely shut Amway down.

After over two years of investigating, the FTC ruled that the Amway business model was legit. They did criticize some of the business practices, and Amway changed some of its sales materials as a result. But the ruling was clear – there was nothing illegal about MLM and network marketing.

This one single decision by the FTC save the network marketing industry as a whole. With the validation of the FTC, network marketers could finally claim what they had always known – MLM isn’t a scam, or a deceptive business practice. Instead, it is a legitimate way to sell products and grow individual businesses.

Another win

Proctor and Gamble, Amway’s main competitor, brought suit in 1995, claiming that Amway had allowed its telephone messaging service (AmVox) to be knowingly used to harm P&G. The claim was that rumors that P&G was a Satanist organization had been spread over this service and that the company’s reputation had suffered damage because of this.

After almost a decade in the courts, and lawsuits in multiple States, the case was dismissed in 2003. P&G did win money against four individual Amway distributors in Utah in 2005, but the Amway Corporation remained untouched by the slander.

**Foreign legal battles**

While the legitimacy of the MLM model was proven in the US, occasionally, the same issue has been raised in other countries. Because Amway Global is actually global in scope, these are of interest.

2006 – India started action against Amway under their version of Ponzi scheme laws. While the case isn’t entirely settled, Amway still does business in India and has won against some of the injunctions placed upon it. The original case is still pending, but in the past four years, no grounds have been found to move forward.

2007 – British authorities brought an action against Amway for what were called, “objectionable practices.” The Department of Trade and Industry (the UK version of the FTC) has the power to shut down operations and this was a serious matter. In 2008, the investigation was complete and Amway was found to have violated no laws in Britain.

**A settled issue**

With the results in, the question of whether Amway is a pyramid scheme or not is settled. Challenges to the MLM business model have been mounted, not only in the US, but several other countries. In every major legal battle, Amway had won.

Network marketing remains a viable and completely legal way to do business. In the new millennium, with the rise of the Internet, it may in fact be one of the best ways to do business. Amway has proven their model over and over again – both in the courts and on the ground. If you wish to partner with Amway, rest assured there is no pyramid scheme, no Ponzi operation – just an exciting opportunity.

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The D word can be devastating to many married people. It almost seems that if you say the word divorce there will be no turning back. Often a person will contact me to discuss a legal separation when they really are intending a divorce but divorce is too fearful and final sounding. It seems to be a first step measure. I find that there is wide misunderstanding of the term.

To add to the confusion, there is a difference between being separated and a formal decree of separation. A couple separates when one or both of the parties determine they no longer want to continue in the marriage and they part ways and set up individual residences. Sometimes this may merely be a cooling off period and the parties reconcile. Other times this is a prelude to filing for divorce. Income earned, debt incurred and property obtained is considered separate property if acquired after the date of separation.

A formal decree of separation is handled much like a divorce (technically called dissolution) The property is divided, there is a parenting plan and child support orders are made. The difference between the two decrees is that the marriage is not dissolved and the parties may not remarry. The most common reason individuals have for obtaining this decree is for religious reasons.

If a petition is filed for legal separation, it can be converted to a dissolution. Either party can request this. A dissolution requires a ninety day waiting period between filing the petition and obtaining the decree. A decree of legal separation has no waiting period. If one party wants a legal separation and the other wants a divorce, there will be a divorce.

I often remind my clients that just because they filed a petition to dissolve their marriage does not mean the divorce is automatic. The parties can withdraw the petition at any time before the final decree is granted. One judge relayed to me that a couple withdrew the petition in front of him as they were finalizing the divorce!

It is important to consult with a family law attorney to assess your options if you or your spouse is considering a marital separation. A family law attorney can explore alternatives for you and help you preserve your rights. I family law attorney will not try to talk you into a divorce and will help you consider all alternatives.

I am a strong proponent of mediation or collaborative divorce. Even when considering only a separation, this process can help you make good decisions for your children and your financial future. A cooperative divorce or separation helps you save time, money, emotional trauma and preserve your privacy