The United States Securities and Exchange Commission’s (SEC) Office of Compliance Inspections and Examinations (OCIE) are now conducting examinations of investment advisers concerning “crypto-assets,” which they define to include crypto-currency, initial coin offerings, distributed ledger technology, blockchain or any related products, and pooled investment vehicles investing in these assets or technology.

Continue Reading SEC’s Office of Compliance Inspections and Examinations Begins Conducting Targeted Reviews Related to Crypto-Assets

Last week, Aretha Franklin passed away at 76 due to advanced pancreatic cancer. This week, reports have been coming in claiming that the Queen of Soul had died without a Will or Trust. According to her long-standing attorney, Don Wilson, he had requested that she establish a trust numerous times, but she never got around to creating one.

Unfortunately, Aretha Franklin is far from the first notable individual to pass without establishing a Will or Trust, many of whom often happen to be significant celebrities and musicians. Perhaps immense fame comes with a sense of immortality. But, the sad truth is that two-thirds of estates are administered without a Will or a Trust.

The process of signing a document that identifies your beneficiaries, your executor, and the guardian for your minor children—if you have them—is not particularly difficult or overly time consuming. If anything, taking the time now will save you and your loved ones a lot of stress in the long run. Failing to properly establish this document means that you are choosing to allow state law to make those decisions for you.

Continue Reading Aretha Franklin is Reported to Not Have Left Behind a Will

As you may have read in our last article, a color or a color scheme can sometimes fall under a company’s trademark if they can prove its distinctiveness. However, what isn’t enough to meet the trademark threshold?

General Mills sought registration of the predominant, yellow color of its well-known Cheerios boxes by attempting to prove the sunny yellow alone was distinctive to their brand. They argued that under Section 2(f) of the Lanham Act, the color yellow had acquired distinctiveness because consumers have come to identify the color yellow, when used in connection with toroidal, oat-based breakfast cereal, as coming specifically from the Cheerios brand, as evidenced through consumer surveys and expert reports. The United States Patent & Trademark Office (USPTO), however, refused registration of the color mark on the grounds that the General Mills had failed to demonstrate acquired distinctiveness.

Continue Reading Trademark Registration of Colors—Stay Mellow, Yellow

Max Schatzow, Esq., on behalf of Stark & Stark’s Investment Management & Securities Practice Group, submitted a comment letter to the U.S. Securities & Exchange Commission (“SEC”) in response to the SEC’s proposed interpretation of the standard of conduct under the Investment Advisers Act of 1940.

While Stark & Stark largely agreed with the SEC’s proposed interpretation of the standard of conduct, it took issue with its characterization of the duty of care owed by investment advisers. As a general matter, investment advisers owe their clients both a duty of care and a duty of loyalty. Stark & Stark generally agreed with the SEC’s framework surrounding the duty of loyalty. However, the SEC’s proposed interpretation of the duty of care would require “the duty to act and to provide advice that is in the best interest of the client.”

Continue Reading Stark & Stark Investment Management & Securities Practice Group Submits a Comment Letter to the SEC on Recent Rule Proposals

In the last few days, hundreds of bankruptcy complaints against trade creditors were filed by bankrupt Chapter 11 debtor VRG Liquidating, LLC (formerly EMS) (docket 16-10971). The crux of the complaints that many businesses will be shortly served concern “preferences,” requesting the return of money received from bankrupt debtors 90 days prior to the bankruptcy filing of April 18, 2016 for goods or services sold. However, before you go writing a check to return hard earned money, you should know that you may have defenses that can be asserted.

What is Preference?

A preference is a payment received from a debtor, made within 90 days of the bankruptcy filing. Bankruptcy Code section 547(b) allows a bankruptcy trustee or debtor-in-possession (here, VRG) to avoid these payments, if the transfers were to or for the benefit of a creditor on account of an antecedent debt, while the debtor was insolvent. When Congress enacted the Bankruptcy Code, the policy behind preferences was to level the playing field for all creditors by not allowing a creditor to receive more than it would have within the debtor’s bankruptcy case.

Continue Reading EMS Bankruptcy Preference Complaints: Trade Creditors Protect Yourselves

During a divorce, many topics are covered in the Marital Settlement Agreement, and many more when the divorcing couple have children together. This can include child support as well as future college contributions. Depending on the agreement, the divorcing parties may specifically determine the percentages that each will pay for college costs, or will—if the child or children are young—defer setting any percentages until the child is in their senior year of high school. Within these agreements, there is often language that stipulates the children are required to apply for any available financial aid, grants and/or loans. However, does this mean children must be forced to take out loans for an obligation that is intended to part of their parents’ obligation?

A recent New Jersey Appellate Division opinion tackled this complicated question in the matter of M.F.W. v. G.O. In the case, the parties divorced in 2003 when their daughter was 5 years old, and their settlement included an agreement to pay for college and included language requiring that the daughter “…shall apply for all loans, grants, aid and scholarships available to her, the proceeds of which shall be first applied to college costs.”

Continue Reading Can College Loans Be Required In a Marital Settlement Agreement?

Within the last week, two (2) retailers filed for Chapter 11 bankruptcy protection, Heritage Home Group LLC and Real Mex Restaurants. Heritage originally emerged after a 2013 bankruptcy of the Thomasville, Broyhill, and Lane furniture brands, and Rex Mex operates Chevys Fresh Mex, El Torito, and other full-service restaurant brands. Both filed in the United States Bankruptcy Court District of Delaware, cases 18-11736 and 18-11795 respectively.

Additionally, Reuters and CNBC are reporting that Mattress Firm Inc., the largest U.S. mattress retailer, is also contemplating Chapter 11 filing.

Continue Reading More Retail Chapter 11 Filings – Thomasville & Chevys Stakeholders File for Bankruptcy; Mattress Firm Appears to be Next

The average consumer has probably heard of terms like “trademark” and “copyright” before, but what falls under trademark? Do colors or color schemes fall under the category of a trademark? The answer may surprise you.

Trademarks and service marks are “any word, name, symbol, or device, or of any combination thereof” that identify and distinguish a mark owner’s goods or services from those manufactured or sold by others. They act as source indicators of the goods or services provided by the mark owner. See 15 U.S.C. § 1127. Dilution occurs when an infringer uses a mark similar to that of a famous trademark, thereby lessening or reducing a consumer’s ability to differentiate between the goods and services of each.

Continue Reading Trademark Registration of Colors—Only Once in a Blue Moon

In this blog we will explore the basic concept as to when a lower tier contractor can sue an upper tier contractor. The generally well accepted principal of law is that a contractor can only sue a party with whom it has a direct contractual relationship. In other words, unless there is a signed contract between two contractors, an upper tier contractor and a lower tier contractor, the lower tier contractor would not have the right to file suit against the upper tier contractor. Likewise, an upper tier contractor would not have a right to bring a lawsuit against a lower tier contractor with whom it does not have a direct contractual relationship with. In the context of a typical construction project, this rule of law has many different considerations, as discussed below.

Continue Reading Right of Sub-Contractor to Sue Upper Tier Contractor

Although some contractors may be unaware, the process for filing a residential construction lien is markedly different than the process to file a construction lien with regard to a commercial property. As to a commercial property, the requirements are relatively simple. First, there must be a written contract to provide materials and services. Next, the services must have been provided pursuant to the contract. Further, there must be non-payment for the materials or services by the owner of the commercial property. Finally, the lien claim must be filed within 90 days of the last time that materials or services were provided. Most contractors wrongfully assume that this same process applies to residential construction projects.

Continue Reading Errors Made in Filing Residential Construction Liens