Blog, Business
“I never signed anything, so I don’t have a contract. Right?” Wrong.
I often get this question or a variation of it from prospective clients and friends. This is a common misconception that all too often leads to problems. Invariably the next question is: if I haven’t signed anything, then how do I know if I have a contract? There are four basic requirements for the formation of a contract: Offer; Acceptance; Consideration; and Meeting of the minds between the contracting parties on all essential elements or terms of the transaction. Although some of these terms may be intuitive, others are not, so it is useful to consider each of them one by one. The “offer” is an element that’s typically intuitive: you are “offering” to enter into a contract with someone. Examples would include “I will pay you $50.00 to mow my lawn,” and “I am willing to purchase your table for $100.00.” If you receive a contract from someone, such as a loan document from a bank, that document is also considered an “offer” to enter into a contract. “Acceptance” is where the waters can become a bit murkier, and also where the title to this article becomes relevant. All that is required for acceptance is for you to demonstrate that you agree to the important terms of the “offer.” One of the clearest ways to do this would be to sign a document containing important terms (such as the loan document above). However, you can also demonstrate your acceptance of a contract by performing (such as retrieving your lawn mower and mowing the lawn in the…
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Blog, Employment Law
“May I Have This Dance?” A Holiday Guide To The ADA Interactive Process
The Americans with Disabilities Act (ADA) requires employers to engage applicants and employees with medical limitations in an “interactive process” to see what (if any) “accommodation” should be provided to help them do their jobs. But that’s a dry legal concept. Let’s be more practical – and festive! Think of the accommodations process as a dance. And the next time you need to discuss a potential accommodation, follow these simple steps… Don’t Talk In Legalese – Though easy to do, don’t discuss “disabilities” or “accommodations” (or “undue hardships”) with your employees. Those are legal conclusions, and if you need to make them at all you should make them AFTER you gather case-specific information. If you know you have an employee with “some need,” just talk to them about what that need is. As you do that, talk instead about an employee’s “conditions” or “restrictions” and ways you can “help” or “assist.” Think of it as the difference between saying “wanna dance” and “would you like to waltz with me along the line of dance at 58 measures per minute?” Which sounds more enjoyable? Talking like a real human being almost always helps the “interactive” part of the interactive process! Talk To The Employee – Actually, do mostly listening. Start with a simple “how can we help you?” and take good notes. Ask follow-up questions focused on “what can you do” and “what can’t you do” in relation to the particular job/position. In return, promise nothing except prompt review and follow-up. In other words, let your dance…
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Blog, Construction Law
A 3-D printed bridge?
Leave it to the Dutch to create the world’s first 3-D printed concrete bridge. 800 layers of pre-stressed reinforced concrete spanning 26’, and designed for bicyclists. (It is in the Netherlands after all). The bridge uses less concrete than in traditional construction and took three months to print out. For more information, https://www.theguardian.com/technology/2017/oct/18/world-first-3d-printed-bridge-cyclists-netherlands It’s a developing technology that may well shake up the construction industry’s old school building practices.
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Blog, Business Litigation
Appellate Court reaffirms Lender’s Priority over Mechanic’s Lien holders– but big questions remain
The Indiana Court of Appeals recently reaffirmed a lender’s priority in mortgaged commercial property over mechanic’s lien holders so long as the lender’s mortgage was recorded first and the proceeds of the lender’s loan were used “for the specific project.” As discussed below, a mechanic’s lien holder may upend the “first to file” general rule, but this recent decision preserves the lender’s priority so long as specific requirements are met. Kellam – The Latest Case The case of Kellam Excavating, Inc. v Community State Bank, 82 N.E.3d 928 (Ind. Ct. App. 2017) (“Kellam”) follows up on the case of Harold McComb & Son, Inc. v. JP Morgan Chase Bank, NA, 892 N.E. 2d 1255 (Ind. Ct. App. 2008) (“McComb”). In both Kellam and McComb the Court reviewed the three Indiana Code provisions generally related to the priority of a lender’s mortgage vs. a filed mechanic’s lien. While there are conflicting provisions in the statutes, both decisions explicitly hold that there is a “Lender Exception” provided for in Ind. Code §32-28-3-5(d) which gives absolute priority in real estate and improvements to a lender when (1) the lender’s mortgage was properly recorded before the mechanic’s lien notice; (2) the funds from the loan secured by the mortgage are intended to finance those improvements; and (3) the lender meets the statutory definition of “Lender,” which is a supervised financial organization or any other entity that has the authority to make loans (Ind. Code §32-28-3-5(a). In Kellam a mechanic’s lien holder questioned whether a leasehold mortgage for improvements constructed on…
Read MoreBlog, Employment Law, News
KGR is excited to have Joe Pettygrove join the firm
KGR is excited to have Joe Pettygrove join the firm as a partner where he will lead the firm’s Employment Law practice. Joe counsels on all phases of the employment relationship, from recruiting and hire all the way through termination and unemployment claims. He regularly trains clients’ HR and supervisory teams on compliance issues and assists in personnel policy/process development, reorganizations, and reductions in force. Joe also litigates the full spectrum of employment-law issues including claims involving the Family and Medical Leave Act (FMLA), the Americans with Disabilities Act (ADA), Title VII, the Age Discrimination in Employment Act (ADEA), restrictive covenants in employment, wage/hour claims, the Fair Labor Standards Act (FLSA), and wrongful discharge. Joe learned both client service and “workplace psychology” from his grandfather, uncles, and parents at an early age, as he grew up amidst a Hoosier family grocery business with a workforce of several hundred. That same experience gave Joe a special appreciation for the stress that employers and their managers confront when navigating the many different legal challenges posed by under performing, ill, sad, angry, or other “challenging” employees. In his law practice, Joe has a particular passion for counseling employers through sensitive workplace investigations, employee medical issues, theft and embezzlement, workplace violence, and other employment challenges. He works with family- and other privately-owned businesses, non-profits, municipalities, and education clients where he both develops policies and practices and is their employment law “problem solver” on delicate employee matters. He has handled hundreds of cases before state and federal trial courts (both inside and outside Indiana), the…
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Blog, Business, Business Litigation
Commercial Courts, TROs, and Restrictive Covenants…Oh my!
The Court of Appeals recently addressed three issues important to Indiana businesses embroiled in legal disputes: 1) Validity of the Commercial Court, 2) ex parte (no notice) temporary restraining orders, and 3) enforceability of restrictive covenants (noncompete and nonsolicitation clauses) in employment agreements. We will address each in turn. Vickery’s and Ardagh Glass’s Dispute Ardagh Glass is a manufacturer of glass containers and bottles. Vickery worked for Ardagh Glass as a Senior Mold Engineer. As a condition of Vickery coming to work for Ardagh Glass, he signed a Noncompete Employee Agreement in 2004 that explicitly provided that Vickery could not work for a competitor for a one year period following his departure. Vickery was passed over for a promotion in 2016, and soon after applied for a similar position at Owens-Illinois, one of Ardagh Glass’s primary competitors. Vickery was offered and accepted the position at Owens-Illinois. Once Ardagh Glass determined that Vickery intended to go to work for a competitor, it informed him that it intended to enforce the Noncompete Agreement. On Vickery’s last day of work with Ardagh Glass, he was informed that Ardagh Glass was filing suit and seeking an injunction that day. Indiana’s Commercial Courts In 2016, Indiana became the 23rd state to establish commercial courts. The pilot program established commercial courts in six Indiana counties and provides litigants the opportunity to place their legal disputes in front of a judge regularly hearing business disputes. Concentrating business disputes with selected judges is intended to more efficiently resolve those disputes and free up the…
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Blog, Construction Law
American Institute of Architects (AIA) 2017 update
“Like a returning comet, the American Institute of Architects (AIA) has released its once-every-ten year update of its frequently used forms. This is the second release this year, following their April release. Such mainstays as the A201 design-bid-build documents, 34 forms in all, are now available for 2017. Other changes in the Scope documents include Site Evaluation and Project Feasibility Services (B203), On-Site Project Representation Services (B207), Certificate of Substantial Completion (G704) and a new Amendment of Professional Services Agreement (G802). A complete list is available from the AIA: https://www.aia.org/press-releases/157776-aia-releases-newly-revised-architect-scope- Future changes will likely include additional technology advancements. Drone mapping, BIM, and laser scanning can assist engineers and architects in developing value engineered designs. These new technologies will present new risks as well, and new liabilities arising from their use. Stay tuned.”
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Blog, Business, News
Ted Nolting selected for Indiana Leadership Forum Class of 2018
KGR attorney Ted Nolting was recently selected for the Indiana Leadership Forum Class of 2018. The Indiana Leadership Forum is a seminar series focused largely on government and political leadership. Participants have the opportunity to meet and interact with elected officials, business and community leaders. The program was created in 1993 by businessman Al Hubbard, political activist Roger Schmelzer and community leader Joe Hale to prepare qualified individuals for civil service and to generate a greater understanding of the political process. Today, in its second decade of operation, the Indiana Leadership Forum is dedicated to preparing Indiana’s most talented free enterprise, limited government minded community and business leaders for greater civic involvement, public service, or leadership roles throughout the state. To date, nearly 500 Hoosiers have graduated from the ILF program and many are actively engaged in various leadership positions across the state. They are teachers, doctors, attorneys and business professionals: men and women with a desire to become more involved in improving their communities. Ted joined KGR in 2016 and practices primarily in the areas of Municipal Law, Corporate Law, Real Estate, and Intellectual Property. With an extensive background in both government and the private sector, Ted serves a number of public and private clients in a wide range of corporate and municipal transactions, including real estate and construction projects, business formations, and minority and women owned business certifications. Ted additionally advises clients on political issues, including campaign and lobbying laws, and currently serves as counsel to the Republican caucus of the Indianapolis City-County Council. Prior…
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Appearances, Arbitration, Blog
College of Commercial Arbitrators Meeting
Bill Bock, KGR attorney and General Counsel for the U.S. Anti-Doping Agency (USADA), will be a panelist at the 17th annual meeting of the College of Commercial Arbitrators (CCA) on Friday, October 13th. Bill has extensive experience with athlete eligibility matters arising under specialized rules and statutes such as the Ted Stevens Olympic and Amateur Sports Act. He was involved in one of the early arbitrations under the Sports Act in 1994 and has handled numerous arbitrations under the Act since that time. He has appeared before panels of the American Arbitration Association (AAA) and/or the International Court of Arbitration for Sport (CAS) headquartered in Lausanne, Switzerland, in more than seventy-five (75+) sports eligibility disputes. The CAS is the specialized arbitral tribunal which handles international sport disputes. Bill has served as USADA’s General Counsel since 2007. USADA is the independent entity with the responsibility to investigate and prosecute instances of drug use in Olympic and Paralympic sports involving U.S. athletes, athlete support personnel and others, (www.usada.org). Bill has direct responsibility for the investigation of potential rule violations and handles the prosecution of cases, where those charged with a rule violation may have their case heard by a panel of neutral arbitrators. Bill was the lead attorney for USADA in the investigation of the use of performance enhancing drugs by Lance Armstrong and other members of the U.S.Postal Service Cycling Team and was the principal author of USADA’s approximately 200 page Reasoned Decision setting forth the evidence against Mr. Armstrong. For his work on the Armstrong case…
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Appearances, Business, Corporate Law, Events
Acquisitions of Privately Held Companies
KGR partner Brian Bosma authored Representing Buyers and Sellers in Acquisitions of Privately Held Companies for a Continuing Legal Education seminar, and is making the paper available for download here. The paper informs the reader of issues typical faced by attorneys in purchase and sale transactions. It is not intended to be a comprehensive treatise on asset or stock purchase sales or procedures, but does provide a basis for discussion with a qualified professional and informs the reader of issues to be aware of and to discuss with a qualified professional to determine how they apply to the reader’s situation. The paper is not to be considered as legal advice or as a substitute for legal advice, and it is not intended to create, nor does it create, an attorney-client relationship. We encourage you to download the paper and learn about: The attorney’s role: The various roles an attorney plays in business and real estate transactions as well as the preparation necessary to fulfill the roles and be knowledgeable in diverse areas of the law and skilled at recognizing issues requiring special expertise and assistance. Setting client expectations: Understanding the client’s needs and identifying the nature of the engagement. Drafting transaction documents: A well drafted agreement ensures the parties deal with and resolve problems initially and prevents disagreements and closing delays. The drafting process requires identifying the details of the transaction, controlling the process, using forms when appropriate, drafting with clarity (identifying the seller and purchaser, defining terms, outlining the transaction, client review, and revisions and…
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