EMV, credit card, small business, nevada, liability

Taking the Shock out of the Shock-and-Awe of EMV Liability

Nevada retailers and other merchants who accept credit card payments are rightfully confused and concerned about new EMV liability rules that will take effect on October 1, 2015. Though it is certainly disconcerting to hear that the retailer or merchant might be liable for fraudulent credit card transactions (as opposed to the credit card companies), the reality is that Nevada retailers and merchants are not facing impending doom and business ruin by not updating to EMV-compliant technology immediately. Of course, Nevada retailers and merchants should be aware of how these new rules affect their business and should make their own cost-benefit analysis before investing in new technology.

 

What is EMV and the “liability shift”

In the best layman’s terms I can think of, an EMV credit card includes a small chip rather than the standard magnetic stripe that we have all been used to seeing on the back of our credit cards. It is claimed that EMV-enabled cards incorporate safety features that will avoid almost all possibility of fraudulent credit card transactions. When literally billions of dollars of credit card fraud occurs every year with the standard magnetic stripe cards, this is a great development in the fight against financial fraud.

However, there has been a great amount of concern about the new EMV rules that take effect on October 1, 2015. The biggest question is about the “liability shift” that occurs on October 1, 2015. In uncomplicated terms, on October 1, 2015, retailers and merchants that accept credit card transactions that turn out to be fraudulent may be left on the hook for those losses, instead of the credit card companies who have always previously covered all instances of fraud1)It is important to note that there are many businesses that will not have any liability whatsoever for various reasons. The nuances of these differences is not examined here.. In short, the new EMV rules push some of the financial loss from fraudulent credit card transactions to the retailer, rather than the credit card companies.

Nevada retailers, particularly small businesses, should rightfully be concerned about this liability shift. One large fraudulent transaction could ruin a small business. To protect against this liability shift, the credit card companies are pressuring retailers to purchase expensive new credit card processing equipment that is EMV-compliant. Should Nevada retailers invest hundreds or thousands of dollars in new credit card processing equipment that is EMV-compliant? Should they take the risk of not having the equipment? What exactly is the risk of not paying for upgraded EMV-compliant equipment? Let’s try to take a bit of the shock out of these questions.

 

When a Nevada retailer might be liable for fraudulent transactions

Most importantly, Nevada retailers will be responsible for the financial losses from a fraudulent credit card transaction only in one circumstance: when a customer presents an EMV-enabled credit card, but the retailer is not using EMV-compliant credit card processing equipment to run the transaction. In this situation, if the transaction turns out to be fraudulent, the retailer will bear the liability (i.e., the financial loss) from the fraudulent transaction. It is also important to consider that if a customer presents a traditional magnetic stripe credit card, which is processed on either the old non-EMV-compliant equipment or the new EMV-compliant equipment, and the transaction turns out to be fraudulent, the retailer is not financially liable for this loss.

 

Should Nevada retailers take the risk?

Nevada retailers should justifiably be concerned about the financial harm to their business if the retailer is liable for a fraudulent transaction. However, as with most business matters, the retailer simply has to calculate a risk analysis and determine as a business matter whether it makes sense right now to protect against this risk by purchasing the expensive new equipment. The first consideration for Nevada retailers is the general fact that the vast majority of credit card transactions in Nevada will likely continue to be processed with the traditional magnetic stripe cards for quite some time. Only a relatively small number of credit card holders have and use an EMV-enabled card2)Las Vegas’ retailers do more business [particularly per capita] than most American cities. When calculating your risk, know that other countries, European ones in particular, have used EMV-enabled cards for a few years now. Remember, any time that a fraudulent transaction occurs with the traditional magnetic stripe card, the retailer is not liable. Nevada retailers would do well to study their transactions in their business over the next month or two to determine how many credit card transactions are processed with EMV-enabled cards. If the number of these transactions is relatively few, the retailer may choose to take the business risk of possible liability on those few transactions.

Of course, in the next few years, we will see more and more credit cards issued with the EMV chip included, rather than the magnetic stripe. But over time, retailers will naturally purchase new credit card processing equipment as part of their normal course of business as equipment becomes outdated or broken. The retailer may choose to wait until the natural cycle of their business to change to the new EMV-compliant processing equipment. In any event, whether retailers choose to make the switch now or in the future, it is unlikely that a retailer will want to hold onto non-EMV compliant equipment forever.

Making the decision to transfer to EMV-compliant equipment is simply a business decision of weighing risks3)When analyzing the risk, remember to account for potential losses as a result of a being held liable for fraud and costs. Will a retailer be liable for the financial loss of a fraudulent transaction if the retailer processes an EMV-enabled card on non-EMV compliant equipment? Yes. Is that risk likely to arise? Maybe, maybe not. If the number of customers using EMV-enabled cards is low in the first place, and if the risk of the customers engaging in fraudulent transactions is even lower, a retailer may just conclude that the “liability shift” of the new EMV rules is much ado about nothing and may just choose to continue business as normal. But, as I like to say, “It doesn’t matter until it matters.” When that one ruinous fraudulent transaction does come through, do not say that you were not warned of the risk.

And, we wish you all a Happy EMV Day on October 1st!

Footnotes   [ + ]

1. It is important to note that there are many businesses that will not have any liability whatsoever for various reasons. The nuances of these differences is not examined here.
2. Las Vegas’ retailers do more business [particularly per capita] than most American cities. When calculating your risk, know that other countries, European ones in particular, have used EMV-enabled cards for a few years now
3. When analyzing the risk, remember to account for potential losses as a result of a being held liable for fraud
republican debate, GOP, trump, rubio, carly fiorina, jeb bush, reagan

The Reagan Republican Debate: Winners, Losers, and the Trump Card

This is (somewhat) accurate. I just double checked. How? Stay tuned.

CNN, the number one source for gotcha journalism on the tv, did a great job of making the 3 hours1)Yes, seriously, it was that long about as entertaining as it could be. Overall, I was impressed with all of the candidates, in particular Mr. Rubio, Mr. Cruz, and Ms. Fiorina. The energy level, preparedness, and general Trumpyness was much better than round 1 (there are more than 20 debates schedule for our Republican friends, if the intensity continues to increase at this rate we will need a UFC-esq cage by January).

I pulled all the clips you need to see2)and probably one or two you don’t, but by the time we are done here, you will have a sufficient number of talking points to convince anyone you sat through this marathon.

 

Part I: The Trumpening of the Republican Debate

It is well documented by the Sensitive Sally Media how Mr. Trump is nothing more than an 8th grade bully, and they have been itching for someone with enough strength to take him on3)We all know the best way to defeat a bully is with a bigger bully. Ms. Fiorina may be the only Republican who is not afraid of Mr. Trump. Jake Tapper, after waiting more than an hour, finally allowed Ms. Fiorina to address Mr. Trump’s comments about her face:

 

GROAN! It is doubtful that she is concerned that his comments about her appearance were not kind, but that he is evaluating her appearance at all!4)#duh Saying she is “beautiful,” when you obviously do not mean it, is not answer! He has a better business record than she does, why not stay on the issues5)What’s that? Administering a business is different, bordering on irrelevant to being the leader of the free world? Sshhh, you are going to ruin all our fun. Do you want to be stuck watching Jeb! debate Mr. Walker’s 3 boring talking points for the next 6 months? Good. Either do I.. The media LOOOVED Ms. Fiorina’s answer. But will the voters? After the strangeness with Megyn Kelly6)I saw some of her recap of the debate, Ms. Kelly has handled Mr. Trump with class to her credit. Her post-game analysis was far superior to Mr. Hannity, who after sucking up to Mr. Walker with such hard hitting questions like “Isn’t it hard to be on the stage with so many candidates; please feel free to recite your stump speech on my national tv show,” brought on candidates that did not parrot his views on the Iran deal and badgered them, I will refrain from any false predictions.

Also, yes, I did catch Ms. Fiorina’s “This is Water” reference! Now if only she would have given the HP treatment to that awful film they tried to put out.

 

Jeb!,7)The Jeb “!” exclamation point leads to about as much fun as one can have with political syntax, by the way was not paying close enough attention to Ms. Fiorina’s interaction with the class bully, and apparently is not much of a fan of The Wire either:

 

 

“If you come at the king, you best not miss” is how I learned it. What did he think Trump was going to do there? Mr. Frum summed up the interaction well last night:

 

Jeb! showed some life later on though:

Even Mr. Trump seemed bemused. There was about an half hour there that we all referred to the former Florida Governor as Jeb!!, but then, as you will see below, we had to take back one of the exclamation points.

Now, Mr. Christie has just been itching to get some of this good bullying action. Finally, he got his opportunity, and talk about turning petulance into lemonade!

 

Won’t somebody please think of the 55 year old construction worker?? Ms. Fiorina was winning the debate before this interaction. Mr. Christie through her off her game, and she had a difficult time recovering/Jake barely called on her the rest of the way.

Mr. Christie went from nearly being sent to the kids table with Mr. Pataki to being declared a “winner” by most of the lamestream media, an impressive feat. Now if only he could get a couple of voters to find him likable.

Yes. And then things got silly…

 

I can hear you. “Stop Brian; just stop. I was a good sport and watched about half of this ridiculousness. No way a Republican, dare I say a Republican, would advocate a Brit to be on the $10 bill.”

Really?

What?? Come on y’all. Nearly half of you couldn’t even answer the question! This is why you cannot miss even one entry on the Clear Counsel Legal Blog; the women of our firm provide three great answers to this inquiry a couple of months ago.

A few thoughts:

  1. Your wife? Jake should have followed up with “What if there are more Supreme Court vacancies than you have siblings, what then?”
  2. Interesting fact: Rosa Parks served on the board of planned parenthood.
  3. How did no one offer up “Hillary Clinton” as an answer?
  4. The LA Times said Jeb! only” insult[ed] every American woman who ever lived.” No big.
  5. Of course, because Jeb! is always sorry, has already begun walking back his Thatcher claim.

The above exchange took place about 2.5 hours into the debate, when perhaps everyone, including your live-tweeting author, was getting a bit delirious. Of course, Jake had to raise the stakes and ask each candidate “what Secret Service code name would you assign” to yourself?

Huuuge Error Jake! This could have been television gold. Should have asked: “What secret service code should be assigned to President Trump?” Just imagine the look on Jeb!’s/Rand’s/Carly’s/Walker’s face!

Of course, none of the answers were very interesting. However, thanks to the Washington Post, you at home can create your own secret service code name! Feel free to refer to me as “Bisharp” going forward.

 

Conclusions from the Republican Debate

Well, I guess we are done here.

Or are we?

For those unaware, Mr. Silver’s statistical models of the previous 2 elections have been quite accurate. He went 50 for 50 in predicting results by state for Obama v. Romney.

To Mr. Silver, granted I am an amateur statistician at best, I would contend that none of the polls so far would meet his critera of “scientific.” Most of the polls are of 500 or less folks, usually only done by landline phone (does anyone under 30 even have a landline anymore?), with a margin of error of more than 5% per poll. The fact that CNN/FOX used the polls to keep some candidates out of the prime-time debate, and leave the others with Gov. Pataki does not seem that reasonable. They could just be honest; America finds you four boring, and dagnabbit, this is a television show primarily8)What? It affects the foundations of our republic? Yeah but did you see that ratings?!. Mr. Graham was smart to quip it up in the happy hour affair, ensuring that he will be included in the next prime time get-together9)CNN changed the rules so Ms. Fiorina would be included, smartly for this Republican debate.

If Mr. Trump were winning only a couple of polls, I would be inclined to go with Mr. Silver, given his track record. But it is every poll, in every state. The establishment media, understandably, cannot fathom how this Trump thing is happening. If I may be of some assistance…

It is not that Mr. Trump is not offensive, does not gaffe at an even higher rate than the King of all Gaffes10)trademark pending, Uncle Joe. It is that the people that support Trump are tired of the empty platitudes. Your voters are smarter than you think they are!

Ms. Fiorina made a real astute11)a bit too astute for the establishment types, by my guess observation when discussing how the Democrats use the immigration issue. To paraphrase, she claimed that Democrats will never reform immigration because it is too good of an issue to win elections on. If resolved, why would working class folks care at all about what they have to say?

This is just as bad of an issue for my Republican friends! And, in my somewhat humble12)Ok fine, not very humble opinion, this is the crux as to why Trump is winning13)Yes, exactly like Charlie Sheen. Scroll up and check out that Drudge poll again. Add up the totals of “outsider”14)the lamestream media just means candidates that haven’t been covering for more than 2 election cycles previous. More than 85% of that total are non-establishment candidates! Unfortunately for Mr. Trump’s ego, his support is more likely a product of the distaste Republican primary voters have for their Washington representatives. Check these stats out:

I thought Republicans were conservative? That 60/36 split says the opposite.

Mr. Trump is easily the most liberal of the Republican bunch. I swear I heard him make the case for a progressive income tax last night16)I cannot confirm this, that whole debate may have taken place in my mind for all I know. AND THE VOTERS DON’T CARE. Perhaps our Republican friends cried wolf one too many times, but the polling makes it seem that your voters do not trust y’all anymore. Perhaps all those shutdown threats come at a price. And they have a chance to run the same shutdown sham again this fall! Will the national leadership learn? Will Jeb! beg them to stop? Does he even have any sway over the Congressional Republicans given his dismal numbers?

More importantly, the national Republicans need to be concerned with this:

I bet those 32% are much happier with the party than they were a year or two ago, but you won’t win any national elections with 32% of the electorate. Assuming Trump does not win, the candidate will have a devil of time trying to ameliorate the harm caused to the moderate electorate opinion of the party 17)not to mention folks of color/women. One might contend that Trump is the logical conclusion of the decades-long national political strategy of “government is the problem,” but that precipitous drop occurred in the past year, correlated with the rise of that old-school Dixiecrat fear-mongering.  Which is the opposite of Mr. Reagan’s “big tent” philosophy by the way.

And you think our zeitgeist has moved into the hyper-real eh? You should see what’s going on in China with the zombies.

 

You need even more debate coverage? I’m impressed with your fortitude!

Jeb Lund wrote a good piece for The Guardian.

David Frum provided some sober analysis for The Atlantic.

 

Ok fine, a few Trump faces for the road…

 

Footnotes   [ + ]

1. Yes, seriously, it was that long
2. and probably one or two you don’t
3. We all know the best way to defeat a bully is with a bigger bully
4. #duh
5. What’s that? Administering a business is different, bordering on irrelevant to being the leader of the free world? Sshhh, you are going to ruin all our fun. Do you want to be stuck watching Jeb! debate Mr. Walker’s 3 boring talking points for the next 6 months? Good. Either do I.
6. I saw some of her recap of the debate, Ms. Kelly has handled Mr. Trump with class to her credit. Her post-game analysis was far superior to Mr. Hannity, who after sucking up to Mr. Walker with such hard hitting questions like “Isn’t it hard to be on the stage with so many candidates; please feel free to recite your stump speech on my national tv show,” brought on candidates that did not parrot his views on the Iran deal and badgered them
7. The Jeb “!” exclamation point leads to about as much fun as one can have with political syntax, by the way
8. What? It affects the foundations of our republic? Yeah but did you see that ratings?!
9. CNN changed the rules so Ms. Fiorina would be included, smartly for this Republican debate
10. trademark pending
11. a bit too astute for the establishment types, by my guess
12. Ok fine, not very humble
13. Yes, exactly like Charlie Sheen
14. the lamestream media just means candidates that haven’t been covering for more than 2 election cycles previous
15. (Harry Enten
16. I cannot confirm this, that whole debate may have taken place in my mind for all I know
17. not to mention folks of color/women
fantasy football, gaming, gambling, legal, las vegas

Is It Legal to Gamble on Fantasy Football?

Football season is back! I would just like to congratulate my fellow football fanatics for making through another tough, football-less offseason1)when will the silly Europeans learn how much better tackle football is and starting training their athletes to play so we have gridiron action all year round?. More importantly for some of us, it is fantasy football season!

How did your draft go? How do you draft Adrian Peterson without any idea how he will play2)gotta be better than my Montee Ball play from last year…here is a free tip from someone who has watched Broncos’ football since the Elway [We love you John!] days: Do not take a Broncos’ running back. Just trust me. There is just no way to predict who will get the carries this year.?

Regardless, I suspect that some of you may be playing fantasy football for cash prizes this year…

 

 

 

Since the sports gaming entities have yet to be finalized3)Stay tuned to the blog for more information. My contact says they should be here in a couple weeks, the only means for non-Nevadan folks to wager on sports, supposedly, is through fantasy leagues.

All of our loyal, intelligent readers are asking themselves now: How is it illegal to bet on football, but legal to wager on fantasy football? The answer is what you would expect: a combination of governmental favoritism, arbitrary demarcations, and a lack of political mettle to do the right thing4)And perhaps a good faith mistake.

Let’s get a little more in depth.

 

Fantasy Football and the Internet Gambling Prohibition and Enforcement Act

In 2006, our friends in the Congress decided that this unregulated internet poker nonsense needed to end5)And rightful so. In turn, the Congress passed the Internet Gambling Prohibition and Enforcement Act. Below is the pertinent part for our discussion:

`(6) The term `bets or wagers’–

`(D) does not include–

`(ix) participation in any fantasy or simulation sports game or educational game or contest in which (if the game or contest involves a team or teams) no fantasy or simulation sports team is based on the current membership of an actual team that is a member of an amateur or professional sports organization (as those terms are defined in section 3701 of title 28) and that meets the following conditions:

`(I) All prizes and awards offered to winning participants are established and made known to the participants in advance of the game or contest and their value is not determined by the number of participants or the amount of any fees paid by those participants.

`(II) All winning outcomes reflect the relative knowledge and skill of the participants and are determined predominantly by accumulated statistical results of the performance of individuals (athletes in the case of sports events) in multiple real-world sporting or other events.

`(III) No winning outcome is based–

`(aa) on the score, point-spread, or any performance or performances of any single real-world team or any combination of such teams; or

`(bb) solely on any single performance of an individual athlete in any single real-world sporting or other event.6)Source

 

Is your head spinning like mine is after reading that? I actually pulled that part of the law from the entry in the Logic Dictionary for “Distinction without a difference7)This is an inaccurate statement.  We have hit that far-too-common crossroads8)That we seem to be crossing more and more these days where we are trying to determine if the law was just poorly written, or drafted  entirely in bad faith. Per usual, I cannot tell. Maybe our lovely congress-folk have not the slightest idea what sports gambling is9)If this is true, why are they writing laws about it?. We will just assume that is that case, because the alternative is much more cynical10)As in, legislators drawing arbitrary demarcations in the law at the behest of special interests. Am in the wrong? Read this NY Post article about the law.

In reference to `(II) above, how do they think sports betters operate? The old, throw a dart at a couple of team names on the board and bet on the punctured organization routine11)Granted this routine needs a catchier name? Every (as in, likely without much exception) serious handicapper considers the “accumulated statistical results of the performance of individuals” before making a sizable wager. Do the congress-folk think the serious betters just guess? They have to know better than that, right?

What about `(III)? This section, if I am to analyze this silliness in good faith, makes a bit more sense, if this law is supposed to be about preserving the integrity of the game and not regulating socially acceptable gambling. The thinking could be (all I can do is make my best guess at what they are going for, assuming good faith) that if the athletes are spread amongst multiple teams, impropriety is less likely to occur. Yet most fantasy teams have less players on them than the actual, real world teams the players work for. The larger the team, the less effect one individual has on the results. So this language is not all that logical either.

Also, most importantly, let us not get lost in the forest. This law is supposed to protect the public from internet gambling. How is the character of gambling any different if you bet on one team as opposed to a collection of players on multiple teams? This is the logical equivalent of legalizing heroin in pill form, but disallowing any derivation of the product that can be injected. Is the issue how the gambling/substance is consumed, or the consumption itself?12)Stay tuned for my post next week that will be done entirely in question form. Your move Ron Darling!

In reference to my point regarding the integrity of sport, former attorney13)Sorry Mike, if you are still in practice; though maybe he is like Paul Finebaum in that he pretends to have never practiced law. Mike Florio evaluates the bill correctly, in my eyes:

The hair-splitting and nonsensical distinction from Congress has made gambling on fantasy football as legal as gambling on stocks, which has spawned an industry that includes some very high-stakes fantasy leagues, some of which undoubtedly include NFL players.  But while it’s only a matter of time before word emerges of the involvement of NFL players in six-figure fantasy leagues, another potential complication could emerge when it comes to the non-gambling gambling of large amounts of money on fantasy football.

Peter King of TheMMQB.com explains that, during his training-camp tour, he has caught wind of “undue pressure some players and coaches feel from big-money fantasy-football players.”  Writes King, “I had one coach tell me there’s so much money in some of these fantasy-football playoff pools that people who used to gamble with bookies illegally are now gambling in high-stakes fantasy-football leagues, which is not illegal.” King adds that the “NFL has its antennae up over this, and it’ll be interesting to see if the pressure escalates to more serious threats on players or coaches.” 14)Source

 

Should this have been thought out more thoroughly? Likely yes. How can the NFL know if one of its players/coaches are playing in a high end fantasy league. Given the concerns above15)valid in my eyes, it is possible that legalizing only fantasy sports betting is much worse than leaving the general gambling prohibition in place.

It is also worth reminding folks that our sports books actually assist federal regulators in catching athlete’s point shaving, recall the Arizona St. scandal from the 1990s.

 

Will fantasy football gambling be legalized as part of a broader movement to legalize internet gambling?

We have trends going in both directions in regards to the question above; it is hard to speculate what will happen. Usually the rich and powerful are on one side of an issue, so it will be easy to see what will happen. There are movers and shakers on both sides of this debate, neither looking like they will give in.

Each side of the internet gambling debate are16)shockingly…don’t make me post that Casablanca clip again disingenuous in regards to the opposing views. On the one hand, the pro fantasy football  folks are making peculiar claims like fantasy football helps kids learn17)maybe more like fantasy football is a cheap/easy cop-out for teachers that are struggling to motivate their students. If your students are not engaged in world affairs, don’t you have some responsibility to show them why they should care? I cringe even writing that. Teaching is so,so difficult. Even still, ignoring the civics component of a public education is an error.

On the other side, Mr. Adelson’s friends against internet gaming18)no truth to the rumor that this was the initial name for the group are equally, if not more disingenuous19)and I say this as someone sympathetic to their views with such specious claims as “Internet gaming hurts union jobs”20)as we all know, union labor is a real passion of Mr. Adelson and “Internet gaming hurts farmers”21)Huh? I cannot even make a bad joke because the connection is so attenuated.

What can we conclude from all the name-calling? It will probably be a few years before internet gambling regulation is resolved at a federal level. Your best chance will be if the federal government becomes even more desperate for revenue than it currently is.

 

So is it safe to play fantasy football for money online?

This is not legal advice22)Note that this is a legal blog, not legal counsel. If you would like legal counsel on the issue, we have great attorneys here who will assist you. Just give us a call, more basic risk analysis. If it was me, and I was going to play fantasy football online, I would think very hard about what happened to the internet poker sites. If you recall, one day people of all ages23)Purposeful cliche were playing with the Caribbean-based sites, the next, they all got shut down. As you can read in the NPR article, all the folks with money in the accounts abroad had no access to get the money back, as all the property was seized. As you can deduce from the ambiguous text of the law above regarding fantasy football, is it conceivable that the DOJ could decide this fall that instead of going after online escort services24)They had quite the summer, they will direct their attention to fantasy football sites.

If you live in Nevada, this seems like an unnecessary risk as there are many companies that will allow you to wager, in-state, on football over the internet25)and unlike Wall Street, you will know the odds of your wager at the moment you make it. If you are out-of-state, it might be worth being patient for a few more weeks until the sports betting entities’ regulations are finalized by the Gaming Control Board. Coming this fall, you can wager with publicly traded companies (Las Vegas casinos) from throughout the country on football through a sports gaming entity. Pretty exciting stuff.

It is difficult enough to win at gambling, why gamble through a medium where there is also a risk that you will not get paid if you win? Think of it as an unnecessary parlay. One wonders if fantasy football gambling was legal in Nevada, why wouldn’t the casinos want some of the action?

Either way, best of luck this year. And Go Broncos!

 

These are two really great academic journal pieces on the history of fantasy football26)Yes, academia seems to be going in a strange direction

Harvard’s Journal of Sports and Entertainment Law

John Marshall Law School

 

Even more reading:

Forbes

RGJ

Politico

Washington Post

The Hill

 

Footnotes   [ + ]

1. when will the silly Europeans learn how much better tackle football is and starting training their athletes to play so we have gridiron action all year round?
2. gotta be better than my Montee Ball play from last year…here is a free tip from someone who has watched Broncos’ football since the Elway [We love you John!] days: Do not take a Broncos’ running back. Just trust me. There is just no way to predict who will get the carries this year.
3. Stay tuned to the blog for more information. My contact says they should be here in a couple weeks
4. And perhaps a good faith mistake
5. And rightful so
6. Source
7. This is an inaccurate statement
8. That we seem to be crossing more and more these days
9. If this is true, why are they writing laws about it?
10. As in, legislators drawing arbitrary demarcations in the law at the behest of special interests. Am in the wrong? Read this NY Post article about the law
11. Granted this routine needs a catchier name
12. Stay tuned for my post next week that will be done entirely in question form. Your move Ron Darling!
13. Sorry Mike, if you are still in practice; though maybe he is like Paul Finebaum in that he pretends to have never practiced law.
14. Source
15. valid in my eyes
16. shockingly…don’t make me post that Casablanca clip again
17. maybe more like fantasy football is a cheap/easy cop-out for teachers that are struggling to motivate their students. If your students are not engaged in world affairs, don’t you have some responsibility to show them why they should care? I cringe even writing that. Teaching is so,so difficult. Even still, ignoring the civics component of a public education is an error.
18. no truth to the rumor that this was the initial name for the group
19. and I say this as someone sympathetic to their views
20. as we all know, union labor is a real passion of Mr. Adelson
21. Huh? I cannot even make a bad joke because the connection is so attenuated
22. Note that this is a legal blog, not legal counsel. If you would like legal counsel on the issue, we have great attorneys here who will assist you. Just give us a call
23. Purposeful cliche
24. They had quite the summer
25. and unlike Wall Street, you will know the odds of your wager at the moment you make it
26. Yes, academia seems to be going in a strange direction
Trump bankruptcy, Donald trump, bankruptcy

The Trump Bankruptcy and You: What We Can Learn

With the upcoming CNN Republican Primary Debate on Wednesday, September 16, 2015, it seems an ideal time to revisit one of the more interesting exchanges during the last Republican primary debate1)Brian was kind enough write up a debate recap in case you missed it hosted by Fox News. While the broader consensus among political commentators was to offer praise to the Fox News moderators for the debate for asking tough questions, an exchange between Fox News’ Chris Wallace and Republican Presidential Candidate Donald Trump seemed amiss, and if it fell short of a targeted attack on Trump, it was at best, a misguided attempt to ask the “tough questions” and provided a skewed view of what bankruptcy actually is.

The exchange began with a fair and legitimate line of questioning when Wallace2)or as close as he could get, referencing Trump’s claims to be the best candidate running to grow the economy, asked why “we should trust [him] to run the nation’s business,” when his companies have filed for bankruptcy 4 times in the last quarter century.

You can watch the entire exchange between Donald Trump and Chris Wallace below regarding the Trump bankruptcy:

 

This is a legitimate question. It is no secret that Trump has been involved in bankruptcies in the past, and, to be sure, it is a legitimate question that remains unaddressed in the minds of many voters who are not entirely familiar with the particulars or history of this issue or the mechanics of bankruptcy law. A presidential primary debate is an appropriate forum to address the topic and allow the candidate an opportunity to explain the issue and provide clarity to potential supporters.

Trump’s response3)I will paraphrase though you will have to imagine my arms, parallel to the floor, moving toward/away from my body as I make my points was essentially that what he did was not illegal, but rather a legitimate business decision that was made by his companies to take full advantage of the laws available to them at the time, to allow them to move forward in the best way possible, and that it is something that has been done by other successful individuals and businesses many times. Furthermore, Trump has never personally filed for bankruptcy. All true.

 

What Mr. Trump can teach us about bankruptcy

Now is a good time to discuss the different kinds of bankruptcy that exist and who can file for bankruptcy. First, the law treats corporations and other business entities like trusts, LLCs, etc. as a distinct and separate legal entity than the person or persons that own the business. In other words, as far as the law is concerned, a corporation is its own fictional “person” with many of the rights, powers, and liabilities that a regular human being4)no word if the state control the reproductive rights of corporations, stay tuned has. Creating a separate legal entity allows an individual, or many individuals, to have an ownership interest in a business venture that exists separately from their personal lives. The business may own property and bank accounts for example, or it may enter into contractual agreements like obtaining loans where the business is the sole liable entity. Obviously, there are some differences between individuals and business entities, however, the key point here is that a corporation has the ability to file for bankruptcy for debts that belong to the business.

Further, there are three primary types of bankruptcy which are distinguished by referring to the different “chapters” of the law that allow for the bankruptcy processes to occur: Chapter 7, Chapter 13, and Chapter 11. The first two typically involve bankruptcies for individuals, while the third, Chapter 11, typically is used by business entities wishing to reorganize their debt and continue moving forward with business operations.

Just because an individual or a business has filed for bankruptcy, does not mean that the finances are doomed for the person or business that is filing for bankruptcy. Nor should it mean that society necessarily attaches a negative stigma to the bankruptcy filer. Several of America’s most celebrated entrepreneurs and leaders have filed for bankruptcy including Henry Ford, Walt Disney, Abraham Lincoln, and Thomas Jefferson5)SourceAll of these individuals went on to achieve great things after going through the bankruptcy process.

In most recent time, the Los Angeles Dodgers6)#Doyer famously filed for Chapter 11 bankruptcy in just 20117)Source. Today, the Dodgers are doing so well financially that they have the top payroll in baseball8)Source, and it is not even close. The next highest payroll team in Major League Baseball is the New York Yankees who pay their players approximately $53.5 Million less than the Dodgers pay their players per year. Suffice it to say, the Dodgers are doing just fine financially, not just in spite of their bankruptcy, but probably partly because of their bankruptcy.

Donald Trump, meanwhile, has never filed for personal bankruptcy. This means that his personal bank accounts, investments, home, cars, and other assets were not part of the bankruptcy analysis in the bankruptcy cases that were filed by companies in which he had an ownership interest. The four times in which companies that he had an ownership interest in filed for bankruptcy, the filed for Chapter 11 reorganization bankruptcies, similar in many ways to the bankruptcy filed by the now financially affluent Los Angeles Dodgers. Trump has seen his companies grow and benefit from the bankruptcies and he estimates his own personal net worth to be in excess of ten billion dollars9)according to him. Bankruptcies or no bankruptcies, such a staggering accumulation of wealth is an impressive accomplishment to say the least.

 

Was Chris Wallace out of line to question Mr. Trump about his bankruptcy filings?

Let us return to Chris Wallace’s original inquiry and Donald Trump’s response. After Trump’s answer that it was his businesses that filed bankruptcy pursuant to applicable law, Wallace, would not let the issue rest, and bizarrely went on the attack, pushing the issue and highlighting the money lost by lenders to the business. What seemed to be pushing Wallace was an underlying sense that the bankruptcy filings were immoral and that it was a process that was unfair to various lenders that had loaned money to the company. What was missing, however, was an understanding that these lenders made a calculated business risk when loaning money to the company. Yes, the lenders to Trump’s businesses lost money…and so did the company and Trump himself on a certain level. However, any entrepreneur can tell you that anytime a business undertaking with such high stakes is taken, high risks are closely tied to the potential for high rewards. Even the stock market itself is the essence of investment in businesses for the potential of high returns, but it comes at the cost of a risk of loss. What the bankruptcy process involved was a way to allow the business to restructure some of its debt in order to maximize its profitability going forward and to allow all creditors of the business to obtain a fair and equitable solution to the dire financial circumstances that were facing the company. Creditors are intimately involved in the Chapter 11 bankruptcy process, even to the point of allowing them to vote in favor of a plan on how the bankruptcy case is going to be carried out.

There might be many reasons why a person would choose not to vote for Donald Trump. However, the fact that he has owned companies that have filed for bankruptcy, usually as a result of a shrewd business strategy, should not be one of those reasons. If anything, it highlights an awareness of the benefits of the various laws available to business owners and an ability to overcome tough financial circumstances.

 

 

Footnotes   [ + ]

1. Brian was kind enough write up a debate recap in case you missed it
2. or as close as he could get
3. I will paraphrase though you will have to imagine my arms, parallel to the floor, moving toward/away from my body as I make my points
4. no word if the state control the reproductive rights of corporations, stay tuned
5. Source
6. #Doyer
7. Source
8. Source
9. according to him
undue influence, probate, estate planning, parents, elderly, mother and daughter

Top 10 Ways to Protect Yourself Against Claims of Undue Influence

If you are taking care of your elderly mother or father, especially if your parent is living in your house with you, pay attention: Your siblings will claim that you exerted undue influence on your parent. I am probably being a little overly cynical, but claims of undue influence, both before and after mom or dad have passed away, happen all the time and keep many lawyers in business with tens of thousands of dollars in legal fees paid pursuing and defending against claims of undue influence.

Unfortunately, the elderly in our society are susceptible to influence. In general, the elderly want to be liked and do not want to upset their children by disagreeing with something that the child proposes, particularly if the elderly parent is living with or dependent upon the child. Even when the child has no bad intentions, suggesting a course of action that the parent would not agree with is a type of influencing of the parent. And, even when the child has no bad intent at all, a suspicious or jealous sibling will do everything in his power to make those actions look as nefarious as possible.

If you are the primary caregiver for your parent or if your elderly parent lives with you, here, then, is the top 10 list1)Given the limitations of this medium, you will just need to imagine me throwing a note card/the crashing glass sound upon completion of each point of things that you absolutely must do to protect yourself from the inevitable claims that you have unduly influenced your parent2)“Paul, hit the music!” and stay tuned next week for a our new segment “Will this legal concept float?”.

The Top 10 Ways to Avoid an Undue Influence Claim Against You

#1: Be Transparent

Undue influence and particularly the suspicion of undue influence, grow in the shadows. Your siblings will become more and more suspicious if they have no idea what is happening with your parent’s health care and financial situations. Share financial statements and medical information with your siblings. “But wait a minute,” you say. “This is none of their business. What Mom and I do with her money is her business. I don’t have to tell my brother what we are doing.” You may feel this way and you may be right. However, if you choose to keep your siblings in the dark about mom’s health care and finances because it is not their “business,” just know that an eager lawyer will make it their business soon enough.

 

#2: Have a Written Agreement

You might think this is silly and overly formal, but make a written agreement with your parent about your arrangement with him/her. If Mom is going to contribute $200 per week for the joint household expenses, write it in an agreement. If Dad is going to pay you $1,000 per month for your caregiver services, write it in an agreement. If Mom and Dad are paying you back for expenses you incurred, write it in an agreement. When your brother sues you for undue influence (and he will) and the only thing that he sees is a check coming out of Mom or Dad’s checkbook written to you, he will naturally assume you were just cashing in at Mom or Dad’s expense. You might be able to convince the judge, eventually, that the arrangement with Mom and Dad was always on the up-and-up, but it will cost you much more in legal fees to do so than Mom or Dad ever paid to you. Write it down, have everyone sign it, and preferably have an independent third party (someone outside the family) be a witness to the agreement.

 

#3: Keep a Paper Trail

Receipts, receipts, receipts. Keep a receipt for every penny of your mom’s money that is spent. If Mom likes to pay with cash only, make sure you get a receipt for every cash purchase. If checks are written, make sure there is written documentation of the purpose of the check, especially if the check is to you3)see #2 above, your spouse, or to another person that would not be obvious what the check is for.

 

#4: Do Not Use Cash

Many elderly people like to operate only in cash. Trust me: cash causes problems. The only thing that your sister sees when she claims to everyone on Facebook that you are exploiting Mom is a bank account statement showing hundreds or thousands of dollars in ATM cash withdrawals every month. Sister is also likely to claim that you were the one using Mom’s debit card to make the withdrawals (which is probably true). It looks bad for you even if you did nothing wrong and even if you really did give all of the cash to Mom. Strongly encourage Mom to use a debit card or write checks4)I know, I’m old fashioned. A debit card purchase will at least show the payee on the bank statement if you forget my advice in #3 to keep receipts. If Mom insists on using cash, remember to keep receipts for every penny.

 

#5 Document Gifts or Avoid Gifts Altogether

Just as cash causes problems, so too do gifts. Mom may want to give you a couple hundred dollars here or there to thank you for your hard work. Or, Mom may give you an item of jewelry (usually the coveted diamond wedding ring). It is best to avoid gifts prior to death altogether, but if Mom insists on giving you something (whether it has a lot of value or just sentimental value) you need to protect yourself because Sister is not going to be happy when you claim that Mom gave you the diamond ring. Make written documentation of the gift and have Mom sign it. Document what the item is, when Mom gave it to you, and, in the best case scenario, a statement of why she is giving you the gift. More importantly, have an independent third party (someone outside the family, like an attorney, and preferably not one of your friends) also sign a statement about the gift. It would be most effective if the third party witness talked with Mom outside of your presence about the gift and could sign a statement explaining why Mom is making the gift. The more documentation you have, the better it will be for you when Sister sues you for taking Mom’s jewelry or stealing Mom’s cash.

 

#6: No Joint Bank Accounts

If Dad suggests that he wants to add your name to his bank account, urge him not to do so. When a bank account is held in joint ownership and one of the joint owners dies, the law presumes that the surviving joint owner is the 100% legal owner of the bank account and has no legal obligation to share the account with anyone else. Brother will claim that you wrongfully convinced Dad to put your name on the bank account so that you could claim surviving ownership of the account when that is not what Dad intended. Instead of joint bank accounts, Dad should consider adding your name to the account as a power-of-attorney5)but remember that all authority as power of attorney terminates upon Dad’s death, or Dad may consider creating a revocable living trust and placing the account in the trust with you as a trustee. Which brings me to …

 

#7: Proper Estate Planning

Hopefully, far in advance of you taking care of Mom full time or having Mom live with you, Mom established a relationship with a good estate planning attorney and has signed power of attorney documents and possibly, created a revocable living trust. If Mom has not yet done so, Mom should do so as soon as possible. WARNING: This is a sticky process. If you find the attorney for Mom, set up the appointment with the attorney, drive Mom to the appointment, or sit in with Mom and the attorney in the consultation and signing appointments, these facts will be used as evidence that you unduly influenced Mom to make the power of attorney, will, and/or trust that benefits you. Be helpful, but not overreaching. If Mom does need help getting to the attorney’s office for the meeting, do not sit in any meeting with Mom and the attorney. If Mom disinherits any of your siblings after she has started to live with you or after you are her caregiver, just know that you will be sued for undue influence even if you had nothing to do with the decision or process of your Mom disinheriting your sibling. I repeat, if Mom disinherits one of your siblings, you will be sued. In any event, even with potential problems, it is far better for Mom to have met independently with a good estate planning attorney who can do an independent analysis of Mom’s situation and assist her in making her wishes known.

 

#8: Do Not Use Fill in the Blank Estate Planning Forms

Dad probably does not want to pay for an expensive attorney to do estate planning for him (see #7). You cannot make him do so. But, please do not make the situation worse by buying Dad the fill-in-the-blank forms that are available at office supply stores. More often than not, these forms are completed incorrectly or signed, notarized, or witnessed incorrectly, both of which could cause the forms to be invalid. In any event, Sister will claim that you unduly influenced Dad to sign these forms, especially when everything is filled in in your handwriting, not Dad’s.

 

#9: Do Not Isolate Your Parents

It is crucial that you allow your siblings access to your parent, including phone access, email access, and in-person access. Even if you cannot stand to see your brother’s face, if he feels like you are preventing him from seeing Mom, he will sue you for undue influence. Be overly accommodating and go out of your way to make time for Mom to spend time with your siblings or to speak with them on the phone. To protect yourself even further, keep a log if your mother’s visits with her other children and keep track of the phone records that show calls to and from Mom with her other children.

 

#10 Repair Relationships

This may be the most difficult advice to give and for you to receive. If you are reading this blog post, and you are concerned about what your siblings will claim about you and your relationship with your parents, then you might have a dysfunctional relationship with your siblings. These could be deep-rooted issues and you may not like each other as much as you used to. As much as we all dislike minor children being a pawn in a divorce proceeding, it is equally bad when an elderly parent is used as a pawn in a power struggle between feuding adult siblings6)who often times are not acting very much like adults. This is a great opportunity to heal with your siblings and bring everyone around to supporting Mom or Dad in their later years. Swallow the bitter pill, be the better person, and make that most difficult first phone call to bury the hatchet7)It seems so much worse in theory than in practice. If you think your relationship with your siblings is bad before Mom or Dad pass away, just wait until Mom or Dad have died and you are sued for undue influence to see how much worse it can get.

Unfortunately, most people who care for their parents as a primary caregiver, or who have their parents living with them, are unaware of the undue influence risk. Relying on the well-worn statement of “I didn’t put a gun to her head” is not a very effective defense when your siblings – or rather your siblings’ attorney – come calling to claim that you exerted undue influence on your parent. The last person you will want to see while grieving your loss is a process server.

 

Footnotes   [ + ]

1. Given the limitations of this medium, you will just need to imagine me throwing a note card/the crashing glass sound upon completion of each point
2. “Paul, hit the music!” and stay tuned next week for a our new segment “Will this legal concept float?”
3. see #2 above
4. I know, I’m old fashioned
5. but remember that all authority as power of attorney terminates upon Dad’s death
6. who often times are not acting very much like adults
7. It seems so much worse in theory than in practice
clean energy, President Obama, Dean Heller, Harry Reid, Green energy, sustainable energy

Nevada Loves Clean Energy!

“And now the time of tide has come; the ship casts off her cables; and from the deserted wharf the uncheered ship for Tarshish, all careening, glides to sea. That ship, my friends, was the first of recorded smugglers! the contraband was Jonah. But the sea rebels; he will not bare the wicked burden. A dreadful storm comes on, the ship is like to break. But now when the boatswain calls all hands to lighten her; when boxes, bales, and jars are clattering overboard; when the wind is shrieking, and the men are yelling, and every plank thunders with trampling feet right over Jonah’s head; in all this raging tumult, Jonah sleeps his hideous sleep. He sees no black sky and raging sea, feels not the reeling timbers, and little hears he or heeds he the far rush of the mighty whale, which even now with open mouth is cleaving the seas after him. Aye, shipmates, Jonah was gone down into the sides of the ship- a berth in the cabin as I have taken it, and was fast asleep. But the frightened master comes to him, and shrieks in his dead ear, ‘What meanest thou, O, sleeper! arise!'”

-Herman Melville, Moby Dick

 

 

Perhaps it would be nice to open with a song; take it away Mr. Flowers!

 

 

Come on! If that does not make you smile, then you don’t know how to say “Nevada.”1)about 5 min in to the President’s speech, he passes the “Nevada” test. Also, no, that is not me playing guitar there on the right, though I do like the cut of his jib.

 

President Obama touts clean energy

If you happened to, you know, be driving at some point on 24 August in the Las Vegas Valley, you may have noticed that traffic was not moving in any direction. That can only mean one thing; President Obama came to see us2)I want to congratulate us residents of the Las Vegas Valley for not throwing a collective temper tantrum over the traffic jams unlike some other, more touchy cities *cough* New York *cough*!

At the risk of offending most everyone3)We have become so polarized that saying something kind about our President is controversial, I must compliment the President on his commitment in his 2nd term to conservation. With little political upside, the President has made reducing the nation’s carbon footprint a priority4)compared to the 2nd term priorities of the previous two Presidents, it should impress you even more. Although there is much valid debate on either side of the argument over how we should institute a conservation initiative, you will have a difficult time persuading me, given that we have only one earth, that we should not do our best to protect it. There are many different opinions of the best way conserve, and we should carefully deliberate before setting a course of action5)the opposite of how we handled the education savings accounts in Nevada. President Obama’s speech is best seen as a contribution to our national conservation conversation. I will provide a few excerpts of the speech in case you missed it.

As well as we’re doing in wind, we’re making even more progress on solar.  (Applause.)  I notice you got a lot of sun around here.  (Laughter.)  America generates 20 times as much solar power as we did in 2008 — 20 times.  Last year was solar’s biggest year ever.  Prices fell by 10 percent; installations climbed by 30 percent.  Every three minutes, another home or business in America goes solar.  Every three weeks, we install as much solar capacity as we did in all of 2008.  And the world’s largest solar installation came online last year, with 9 million solar panels generating enough electricity to power more than 100,000 homes with clean, renewable energy — not in Germany, not in China, not in Saudi Arabia — right here in the United States of America…And one of the reasons we’ve done this is not just because it’s good for the environment and good for the overall economy — it takes workers to install all this new capacity.  And that’s why, last year, the solar industry added jobs 10 times faster than the rest of the economy.  Solar has helped a lot of construction workers find work while Congress was dragging its feet on funding infrastructure projects.  In fact, the solar industry now employs twice as many Americans as mining coal.  (Applause.)  We’re helping more veterans find work with our Solar Ready Vets Program, with a goal of training 75,000 solar workers who have been veterans by 2020.  That is a goal we can achieve. (emphasis added)

 

It seems that we are right on the brink of serious technological breakthrough here. Like where we were with the internet in 1995. A little more from President Obama:

Now, what’s interesting is that their actions have conjured up some pretty strange bedfellows.  In some states, we got Green Party and Tea Party teaming up to protect our freedom to choose clean energy.  It is rare that the Tea Party leaders and I are on the same side of an issue.  (Laughter.)  I agree with them here. (Applause.)  And just because I agree with them, I don’t want them to change their minds now.  (Laughter.)  I promise there are all kinds of other things you can whoop me.  (Laughter.)  

But this is important, and they are absolutely right on this fight.  This is not, and should not be, a Republican-versus-Democratic issue.  (Applause.)  This should be an issue that can bring everybody together.  (Applause.)  If you’re a progressive, you should care about this.  If you’re a libertarian, you should care about this.  If you just want to save some money, you should care about it.  And if you care about the future of our children and grandchildren, you should care about it.  (Applause.)

So here, and across the country, this is about whether big polluters control the system, or whether consumers have freedom to choose cleaner, cheaper, more efficient energy; whether we protect old ways of doing business even when they’re not efficient, or we dream up new business models that bring new technologies into our homes and businesses, and new jobs into our communities.  This is about the past versus the future.  And America believes in the future.    

And to make that future a reality, we got to have everybody — utilities, entrepreneurs, workers, businesses, consumers, energy regulators, tree huggers, Tea Partiers — everybody has got to seize the opportunities before us.  

 

Mr. President, let us not forget your favorite constituency: the tea partying, tree-huggers. By the way, I did not go back and check the speech transcript against the actual laughs/applause; is it fair to assume the “official scorer” of the speech probably interprets6)like one of those official scorers in baseball that adjudicate the 50/50, hit/error plays in favor of the home team the terms “speech” and “laughter” more broadly than usual? How could s/he not? Would you want to argue with the President as to if he got a sufficient number of chuckles to justify the transcript saying “(Laugher.)”?

More seriously7)ok, fine, for a couple sentences I will make a semi-serious point but then return back to the usual sophomoric antics, anytime I hear a politician say something in the vain of “this issue is of such importance that it rises above the usual partisan politics” my politi-speak antennae begin to a flutter. I compare this language to when a good friend of yours begins a sentence “with all do respect..”. A qualifier is usually a good indication that the opposite is about to occur in the subsequent language.

All do respect to the President8)I kid, there are very few, if any, political issues that are non-partisan. If you do not agree with the President that conservation should be a national priority, then this point is obvious. For the rest of us, even if cannot fathom why we should not love and protect the earth, we at least can concede that opinion is not uniform on the issue. Pretending otherwise is not constructive, and frankly, greatly upsets those whom do not share your views.

Here are a few pictures from the event:

 

 

 

“But Brian, don’t you have a way to consume the speech through a medium that I will not have to read at all and can just fiddle around on the facebook while its playing so that it is more like I am facebooking to the docile tones of President Obama than consuming political thought?”

As as matter of fact, yes, I do. Enjoy:

 

 

The crowd just eats of of his hand, right? With a little practice and hard work, President Obama could match verbal eloquence of Mr. Trump. I just wish the President would bring his “anger translator” with him to more speaking engagements.

 

Las Vegas was not the only city talking clean energy

Up north9)contrary to popular belief in the Valley, the state boundary does not end at the Clark County line, state leaders of Nevada and California demonstrated how teamwork and good faith can lead to positive change. Senators Heller and Feinstein10)of California hosted the Lake Tahoe Summit.

In particular, the speakers of the summit focused on the depressed levels of Lake Tahoe, how to reduce greenhouse gases in the Tahoe, and how to reduce the risk of wildfire in the Tahoe basin. Although all three areas of concern are important, I will focus on the last.

Wildfires are a significant issue for us Westerners. From Southern California to Washington and the greater Northwest, fires are causing irreparable harm. The fire in Washington is so bad that they have brought in dozens of firefighters from Australia and New Zealand because they do not have enough qualified professionals to assist in containing the blaze. Some estimates have the Washington fire burning until November. Hopefully the rainy season comes early this year.

Our beautiful landscape of Northern Nevada is reportedly dry and at serious risk of wildfire as well. You can tell the risk is serious given how well California and Nevada politicians are working together to address the issue11)reading a couple of the summaries of the Tahoe Summit [see below] will make you smile. Even if the media only covers Donald Trump’s abrasiveness from a day-to-day basis does not mean that there are not politicians out here doing right by their constituents, both in terms of actions and carriage. Perhaps what I see is not all there is . Unfortunately12)from my limited perspective, the wildfires are in the class of natural disasters that we just are not technologically advanced enough to prevent13)With the sudden influx of ‘smart’ technology, this concept is not as apparent as it once was. If I can turn off the lights in my home with my ithing, is there anything we cannot do?.

At the beginning of the century, the federal government provided funding to help protect the Tahoe habitat. Now that funding has dried up, so Sens. Heller and Feinstein teamed up in co-sponsoring a bill to increase funding to protect Northern Nevada/Eastern California:

The event occurred as two bills are being considered to provide the federal government’s share of funds for future restoration projects. One, introduced by Nevada’s and California’s senators, would authorize up to $415 million over 10 years to fund a broad array of projects. The other, introduced in the House by McClintock and Republican Rep. Mark Amodei of Nevada, would authorize up to $60 million over a decade, with the money focused on wildfire danger and invading plants and animals that threaten the lake.14)Source

 

I, for one, am surprised that Rep. Amodei is willing to sponsor a bill for any funding. There is only a difference of $350 million between the senate/house bills; (assuming they pass) should be a fun time in conference committee15)[not-so]Small civics footnote: when the house and senate pass bills that are not exactly alike, members of each chamber meet to find a compromise between the two bills in what is called the “conference committee.” After the committee members agree to common terms, each chamber must vote again on the bill. If it passes, then it is sent to the President’s desk for a signature or veto (or the dreaded pocket veto). If you want to learn more about how powerful the conference committee is, see Ron Suskind’s Confidence Men. If an Obama Administration official asks, you did not hear about that book from me.

A couple pictures from the event:

#besties

 

Governor Sandoval skipped the Tahoe Summit to discuss…the greater sage grouse?

We will start with Governor Sandoval’s statement regarding his meeting with President Obama:16)I look around the country at some of the silliness of other governors, and it makes me appreciate Mr. Sandoval even more

 

 

You can put your hands down, I already know your questions: “Isn’t the greater sage grouse a kind of chicken? Moreover, why would the Governor and President need to discuss fowl?”

To your first inquiry, yes, the greater sage grouse is a large, wild, chicken-esq bird17)Cute too. As to why the greater sage grouse is subject of a testy political issue, well, that is a much, much more complicated question than you would ever think. For brevity’s sake, I will not provide you will a full history of the issue18)leave a comment for us on the facebook if you demand a more in-depth discussion of the greater sage grouse, and we will bring it to you. Anything for our readers..

Governor Sandoval’s press office exhibited politi-speak quite well there; I do not care how many times you read that statement, you will not find the crux of the issue. This may shock you, but the controversy comes down to the all mighty dollar. I will provide an outline of events so far this year. In early Spring, the federal government announced that, although the population of the greater sage grouse has decreased from the millions to a few hundred-thousand, that working with the state governments, it had a plan to protect the habitat of our bird friends without adding the greater sage grouse to the endangered species list. However, a few environmental lobbyists sued the federal government saying that in accordance with the Endangered Species Act, the government has no choice but to declare the greater sage grouse endangered under the act. Now the feds are saying that they are evaluating the concerns and will issue a ruling before the 30 September date set in the judgment of the lawsuit.

Why would folks care if the federal government declares the greater sage grouse endangered? Because under federal law, exploration and extraction of natural resources19)oil, gas, coal, etc. is severely limited in the habitats of endangered animals. That’s right folks, always comes back to money. And in this case, a significant amount. Do the resource extractors20)#great moments in euphemisms need to worry? Perhaps:

According to CBD, the Obama administration has listed an average of 41 species per year. While that’s more than five times the rate of the previous administration, it falls short of the administrations of Presidents Clinton (65) and George H.W. Bush (58), according to CBD. The Carter administration listed 38 species per year, and the Reagan administration listed 32 per year. The Obama administration is also slated to remove more species from the threatened and endangered lists than every other administration combined (Greenwire, May 29).21)Source

 

Is there some sort of middle ground where the fowl can form their habitat on a pretty oil derrick? No? I am curious how President Obama will form a grand compromise for this problem.

 

A little, tangentially, clean energy fun

Mr. Greenspun, publisher of The Las Vegas Sun, hosted a fundraiser for former attorney general Catherine Cortez Masto as she prepares to run for Harry Reid’s senate seat22)By the way she is Sen. Reid’s anointed successor. President Obama and Senator Reid spoke at the fundraiser23)Anyone else notice the conspicuous timing of Sen. Reid endorsing the Iran deal the day before President Obama arrived to speak at Sen. Reid’s clean energy summit?, which you may have heard about in the news because the President referred to some of his political opponents as “crazies.” As to whom are the “crazies”, media accounts are inconsistent. When you carry yourself with the grace of President Obama, even one word out of the ordinary gives the politi-media a conniption24)I can hear Gov. Romney saying, “haven’t you learned how risky it is to speak frankly at fundraisers??”.

Ever wonder what folks eat at a fancy-pants fundraiser like this? Sen. Ford was nice enough to post the menu on the facebook:

 

 

I am not completely sure what free-range Jidori chicken breast is, but I trust Sen. Ford’s review.

 

Before we go, did Senator Reid leak his retirement plans on twitter? Super group anyone?

 

More reading, in particular I liked the op-ed penned by Senators Heller and Feinstein:

News Times

Yahoo

Let’s talk Nevada

Free Beacon

Las Vegas Sun

The White House

More Free Beacon

Kolo TV on the Tahoe Summit

Carson Now

Senator Heller’s op-ed

The National Journal on the Greater Sage Grouse

The Denver Post

The Elko Daily

The Military Times

 

 

Footnotes   [ + ]

1. about 5 min in to the President’s speech, he passes the “Nevada” test. Also, no, that is not me playing guitar there on the right, though I do like the cut of his jib.
2. I want to congratulate us residents of the Las Vegas Valley for not throwing a collective temper tantrum over the traffic jams unlike some other, more touchy cities *cough* New York *cough*
3. We have become so polarized that saying something kind about our President is controversial
4. compared to the 2nd term priorities of the previous two Presidents, it should impress you even more
5. the opposite of how we handled the education savings accounts in Nevada
6. like one of those official scorers in baseball that adjudicate the 50/50, hit/error plays in favor of the home team
7. ok, fine, for a couple sentences I will make a semi-serious point but then return back to the usual sophomoric antics
8. I kid
9. contrary to popular belief in the Valley, the state boundary does not end at the Clark County line
10. of California
11. reading a couple of the summaries of the Tahoe Summit [see below] will make you smile. Even if the media only covers Donald Trump’s abrasiveness from a day-to-day basis does not mean that there are not politicians out here doing right by their constituents, both in terms of actions and carriage. Perhaps what I see is not all there is 
12. from my limited perspective
13. With the sudden influx of ‘smart’ technology, this concept is not as apparent as it once was. If I can turn off the lights in my home with my ithing, is there anything we cannot do?
14. Source
15. [not-so]Small civics footnote: when the house and senate pass bills that are not exactly alike, members of each chamber meet to find a compromise between the two bills in what is called the “conference committee.” After the committee members agree to common terms, each chamber must vote again on the bill. If it passes, then it is sent to the President’s desk for a signature or veto (or the dreaded pocket veto). If you want to learn more about how powerful the conference committee is, see Ron Suskind’s Confidence Men. If an Obama Administration official asks, you did not hear about that book from me.
16. I look around the country at some of the silliness of other governors, and it makes me appreciate Mr. Sandoval even more
17. Cute too
18. leave a comment for us on the facebook if you demand a more in-depth discussion of the greater sage grouse, and we will bring it to you. Anything for our readers.
19. oil, gas, coal, etc.
20. #great moments in euphemisms
21. Source
22. By the way she is Sen. Reid’s anointed successor
23. Anyone else notice the conspicuous timing of Sen. Reid endorsing the Iran deal the day before President Obama arrived to speak at Sen. Reid’s clean energy summit?
24. I can hear Gov. Romney saying, “haven’t you learned how risky it is to speak frankly at fundraisers??”
politics, hillary, trump, bernie, o'malley, las vegas, nevada, rubio

Your Weekend Politics Round-up! And You Thought This Nonsense Couldn’t Get Any Funnier…

There is not anything of substance to learn about the candidates with the election more than 400 days away, but there is plenty to laugh at! Enjoy.

 

We obviously have to start with a Trump heading

Oh, where to begin with Mr. Trump this week. What if I told you the front runner for the Republican nomination believes that the 14th Amendment is unconstitutional? (Wait for it) Still confused? Good. Seven minutes of Bill O’ and the Donald should clear up any ambiguities1)Please do not feel obligated to watch all of this, save your sanity

 

 

Well, I am sure that after Mr. Trump is elected, and appoints “America’s lawyer,” Michael “you can’t rape your wife” Cohen as Attorney General, then finally, the question of which amendments to the constitutional are actually constitutional will finally be resolved.

Next, Tonyaa Weathersbee of The Root wrote the piece I have been waiting for, with regards to your friend Mr. Trump: “Is Donald Trump vying to become the next George Wallace?” As far as I know2)these campaigns were a bit before my time Perot and Forbes did not traffic mostly in racial fear/animosity to try to gain popular support. Mr. Wallace, on the other hand, did just that. Ms. Weathersbee has more:

And like Wallace—who, after losing his first race for governor in 1958 to an opponent who had the backing of the Ku Klux Klan, vowed, “No other son of a bitch will ever out-n–ger me again”—Trump is apparently taking no chances on being “out-illegaled” by his Republican opponents in the presidential campaign.

 

Stoking prejudice for political gain is nothing new in American politics, unfortunately. The target of the attacks just seem to change over time. Who knows, 50 years from now, if you project our demographic changes, a candidate may be running for office talking about how white people are the cause of everything that is wrong with America.

When some racism gets you to the top of the polls, why not try out a little more? Diminishing marginal returns do not seem to apply to Mr. Trump’s racial antagonism. Buzzfeed transcribed how Mr. Trump plans on dealing with gang violence3)a very serious issue in our cities, certainly a topic worthy of discussion by the Presidential candidates as explained during a radio interview Thursday:

“You know, a lot of the gangs that you see — this doesn’t hopefully pertain to you guys so much — when you look at Baltimore, when you look at Chicago, and Ferguson a lot of these areas,” Trump said on FM Talk 1065AM on Thursday. “You know, a lot of these gang members are illegal immigrants. They’re gonna be gone. We’re gonna get them out so fast, out of this country. So fast.”

 

“So fast.” Heh.

Lastly, this interview with Mr. Trump in the Hollywood Reporter is a true entertainment. I have never read a print interview where I had no idea how the interviewee would respond to the inquiries. I will give you a little taste in case you do not believe me:

You’re getting a ton of criticism. Does any of it actually ring true?

People say, “He won’t apologize for anything” — well, I was right on illegal immigration. [John] McCain blew it because he’s done a poor job of taking care of the veterans. And then the third element so far, you had Megyn Kelly, and I think you’ve seen what happened with that. I feel quite confident in my position. At the same time, I believe in apologizing. But to apologize for me is very difficult. I definitely would apologize if I were wrong on something.

What was the last thing you apologized for?

It was too many years ago to remember. I have one of the great memories of all time, but it was too long ago.

 

Mr. Trump’s media doppelganger is blaming us, the people(???) for the Trump phenomenon.

No one is making you discuss Mr. Trump. Feel free to stop at anytime4)both talking Trump and going on air, thanks.

In case you were wondering, Mr. Trump is holding a “pep rally” in Alabama this weekend. No word if any kin of Mr. Wallace will be there.

 

I suppose we have some time for our Democratic friends as well

Secretary Clinton previously met backstage with Black Lives Matter activists in New Hampshire. This week, the video leaked. It left me with that wide-eyed ‘deer in the headlights’ type look. Mr. Wilmore, whose Nightly Show looks like it will be a big hit, broke down the leaked footage with the help of a couple of corespondents:

If you watch the entire episode, Mr. Wilmore speaks with two of the activists in the videos that confront Hillary Clinton. I felt like I had a better5)not complete understanding of the BLM movement after watching.

Next, “The greatest political reporter in the history of Nevada,”6)definitely not my quote, though he is competent, sure Jon Ralston was on The Rachel Maddow show to discuss Gov. Martin O’Malley’s press conference held in front of the Trump Hotel here in Las Vegas on 19 August.

I attended7)unlike Mr. Ralston the strange press event, held on a traffic median8)have to say it was the first press conference I have ever been to on a traffic median between the Trump Hotel and the Fashion Show Mall. The only knowledge I had of Gov. O’Malley is from what I learned from the scathing critique of his politics as portrayed by David Simon in The Wire. I have to say, honestly, I was impressed by him. He spoke very well (unfortunately uncommon these days with our political figures), and he went after Hillary in a way no other Democrat has. For example, when asked about her position on the detention of undocumented children, Gov. O’Malley commented “she has changed her position 4 or 5 times; at least it shows she has been thinking about the issue.”

Gov. O’Malley has been highly critical of the Democratic National Committee for scheduling only six debates (in 2008 there were more than 25); Sen. Sanders has as well, but not nearly at the volume of Mr. O’Malley. It is not surprising given that Gov. O’Malley is between 2-4% in the polls, and Mr. Carson and Ms. Fiorina received a significant bump after strong performances on the Fox News debate. The public does not seem to desire more debates (now if they had a celebrity debater, maybe the score would change…perhaps Gov. O’Malley should attempt to push Kanye West into the race), which led the Governor to quip in San Francisco:

Hitting cleanup for the dems, fake candidate Larry Lessig9)who? Exactly., who thinks that by teaching at Harvard should entitle him to the office of the Presidency, posted an online poll to determine his VP:

I think a Lessig/Trump ticket would be unstoppable. Until they had to be in the same room with one another.

 

In case all this politics wasn’t fun enough

We have reached the closing, comedy section our our politics grab-bag of sorts. First10)a hat tip to friend of the blog, Ben Jacobs of The Guardian, from the Washington Free Beacon, a look into the future of what America will look like under the Trump administration.

 

Next, as promised, Mr. Rubio playing catch with an Iowa kid’s face:

One wonders how Mr. Trump would have responded to11)by that I mean, what names he would call the poor kid that incident. I think we all know that President Obama would have, somehow, caught the ball himself.

Lastly, if you do not keep up with North Carolina politics12)come on!, you may not know who is polling in 3rd place currently. Because this blog is family-friendly, I cannot even link to the story. Just know that a 15 year old Iowa teenager is playing the practical joke of a lifetime. Seriously, google this nonsense.

 

Footnotes   [ + ]

1. Please do not feel obligated to watch all of this, save your sanity
2. these campaigns were a bit before my time
3. a very serious issue in our cities, certainly a topic worthy of discussion by the Presidential candidates
4. both talking Trump and going on air, thanks
5. not complete
6. definitely not my quote, though he is competent, sure
7. unlike Mr. Ralston
8. have to say it was the first press conference I have ever been to on a traffic median
9. who? Exactly.
10. a hat tip to friend of the blog, Ben Jacobs of The Guardian
11. by that I mean, what names he would call the poor kid
12. come on!
Donald Trump, Clinton, Walker, Bush, election 2016

Donald Trump and Everything You Missed in the Weekend of Politics

Family, work, friends, fantasy football..I mean, who has the time to keep up with all the political happenings? Who would blame you for prioritizing your family with the election more than 400 days away? Lucky for you, dear reader, I quit fantasy football years ago, so I was able to allocate the time usually applied in mock drafts to keep tabs on the presidential, political goings-on. Did something happen over the weekend that you will forever regret not witnessing in real time??

Of course not. The election is more than a year away. But a few noteworthy1)by noteworthy, I mean campaign fodder that could help you look clever in your next politico-water cooler conversation events took place. And because we love our readers, we aggregated all the info you need (and perhaps a little extra).

 

Donald Trump shows Charlie Sheen what “Winning” really means

The2)The Clear Counsel Law Blog remains your go-to source for dated pop-culture references…well second to the VH1 candidates attended the Iowa State Fair this past weekend; a fun event where technocrats pretend they understand regular folks by trying to eat fried food without grimacing3)The fair seriously is a whole lot of fun, highly recommended, especially in campaign season. With a quick perusal of the news from the weekend, you will find photos of Gov. Bush, Sec. Clinton, and Donald Trump eating a pork chop on a stick. In a normal election cycle, the story would be about Gov. Walker being interrupted by union protesters as he attempted to answer questions from his soapbox, as opposed to this peculiar explanation of his hair line:

 

Per usual, Mr. Trump has no interest in ceding any free media to his fellow candiddates, so he brought his helicopter and offered free rides from the state fair parking lot to interested children.

 

To ensure that no other candidate would pick up any media coverage this weekend, Mr. Trump joined his press equivalent4)please draw what conclusions you like on Meet the Press, and it was as fabulous5)if you write politics for a living/horrible6)if you care for America’s image at home and abroad as you are assuming it was.  Luckily, Chris Cillizza7)Read the piece here, it is pretty great. (of The Fix. Follow him on Twitter at @thefix) annotated the Donald Trump/Chuck Todd conversation from Meet the Press. The written transcript is as great as the video footage. Please allow me excerpt two of my favorite exchanges. Don’t worry, the context is irrelevant.

 

CHUCK TODD:
We do have a running theme here. You believe the U.S. should– you’re okay with the U.S. being the world’s police–

DONALD TRUMP:
We should at least–

(OVERTALK)

DONALD TRUMP:
–be reimbursed–

CHUCK TODD:
–if we get paid–

DONALD TRUMP:
–by these extremely wealthy countries, yes–

CHUCK TODD:
So essentially you want–

DONALD TRUMP:
Chuck, we–

(OVERTALK)

CHUCK TODD:
It turns our–

DONALD TRUMP:
We have–

CHUCK TODD:
–military into a mercenary force.

 

Oh yes, it happened again.

 

CHUCK TODD:
I understand that. But–

DONALD TRUMP:
They moved to–

CHUCK TODD:
–Mexico–

DONALD TRUMP:
–Mexico–

CHUCK TODD:
They’re not doing–

DONALD TRUMP:
I don’t care how they’re–

CHUCK TODD:
–better.

DONALD TRUMP:
I don’t care how they’re doing as a country–

CHUCK TODD:
They’re doing worse.

DONALD TRUMP:
I’m just saying they’re killing us. Because everybody’s moving into Mexico.

CHUCK TODD:
There are people that argue NAFTA was terrible for them.

DONALD TRUMP:
Mexico is doing an unbelievable job. Mexico is taking our business. Mexico is the new China, okay? Look at the–

CHUCK TODD:
Where is the evidence of this?

DONALD TRUMP:
It’s all over the place. Chuck–

CHUCK TODD:
Their GDP is smaller–

DONALD TRUMP:
Chuck.

CHUCK TODD:
This is–

DONALD TRUMP:
They’re moving companies–

CHUCK TODD:
The peso, it is–

DONALD TRUMP:
That is true–

CHUCK TODD:
–worth less today. I mean–

DONALD TRUMP:
And you know what?

CHUCK TODD:
That’s not the sign of–

DONALD TRUMP:
And, Chuck–

CHUCK TODD:
–a strong economy.

 

So8)there is not anything I can add to the above exchanges. They are perfect, as is. you probably heard that Megyn Kelly took a previously unannounced, 2 week respite from her nightly show, upon a secret conversation between Mr. Trump and Mr. Ailes9)who runs the Fox News. Given all this negative media attention, particularly since the debate, you would think Mr. Trump’s poll numbers would be deflated?

Guess again.

Mr. Trump is blowing out the competition. At some point, we will need to try to figure out how/why this is happening. Fellow billionaire/egomaniac10)I say that with peace and love Mark Cuban stated why he feels, not only why Mr. Trump is doing so well, but why Mr. Trump is “probably the best thing to happen in politics in a long long time.”

“I don’t care what his actual positions are,” Cuban wrote. “I don’t care if he says the wrong thing. He says what’s on his mind. He gives honest answers rather than prepared answers. This is more important than anything any candidate has done in years.”

Indeed, the outspoken investor said Trump “changed the game.”

“Up until Trump announced his candidacy the conventional wisdom was that you had to be a professional politician in order to run,” Cuban continued. “You had to have a background that was politically scrubbed. In other words, smart people who didn’t live perfect lives could never run. Smart people who didn’t want their families put under the media spotlight wouldn’t run. The Donald is changing all of that. He has changed the game and for that he deserves a lot of credit.”11)source.

 

Please read that first sentence again. Has this always been true of voters? Or has something happened in our politics where a strong plurality of voters care less for political positions than supposed authenticity? We will need to put a pin in that inquiry for now.

Of course, New York City summoned Mr. Trump for jury duty today. He, obviously, did not want to take attention away from the judicial process, so he arrived early, entering quietly through a side entrance. Oh wait, that would be absurd.

https://twitter.com/ABCPolitics/status/633305371520724993/photo/1

 

Wait, are you saying we have two political parties??

As much as the lamestream media would like to pretend, the winner of the Republican nomination will not be automatically anointed President. S/he will have to run a general election campaign against the Democratic nominee12)from their stances of ‘deport all immigrants, including all children, relatives, and attenuated friends’ to promulgating that ‘vaccines cause autism’ to ‘abortion is unacceptable, even to for a 10 year old girl that was raped,’ I am not convinced the republican candidates are aware that their primary is not the final round of voting. By the way, I only made up one of those three positions. Not that I particularly care about their policy stances, but one must assume that the political machine that turned Mitt Romney into Gordon Gecko last election cycle will have a field day with these less-than-mainstream political views..

In the backdrop of Gov. Jeb13)Did you know that JEB is an acronym for John Ellis Bush?!? How did I just learn of this? He is the ATM Machine of presidential candidates! Bush’s visit to North Las Vegas last week in which “Black Lives Matter” protesters interrupted the end of his presentation, Secretary Clinton will be in North Las Vegas tomorrow (around noon). Will she be interrupted as well? Sen. Booker was in Las Vegas yesterday as a surrogate speaker for Secretary Clinton. At the event, he addressed the concerns of a few questioners regarding institutional racism, but will that be sufficient? The event opened with an one-act play, so clearly, we all missed out. Read more about it here.

The AFL-CIO hosts their convention from the Luxor/Excalibur Tuesday and Wednesday. Secretary Clinton, Gov. O’Malley, and Sen. Sanders are scheduled to speak tomorrow, Tuesday. The event is less likely to be interrupted by protesters, as not even media members are permitted to attend14)Obviously, so that they can plan their Fall affront to everything Sean Hannity finds dear.

For some reason, the only lamestream press Sen. Sanders receives regards the couple of instances his events have been interrupted by “Black Lives Matter” protesters15)asking my writer brothers and sisters to investigate why Sen. Sanders, as an independent-socialist, draws 10X (at least) the number of voters at his rallies, relative to anyone else running for president, must be too much to ask. Maybe these folks were duped into thinking there was going to be a flash-drum circle? There is no way to tell until someone actually asks the people why they arrive to see Sen. Sanders and no one else. Charles Blow wrote a nice analysis of awkwardness between Bernie supporters and the “Black Lives Matter” folks, if you desire some well-thought-out concepts on the issues, as opposed to the usual name-calling on the twitter. Also, in case you were worried, Sen. Sanders knows all about #BernieSoBlack

 

Before we go, a little political humor from Dana Gould16)Hey, not a lot of Harvard Law grads look like a character from The Munsters; Sen. Cruz should be proud!

Footnotes   [ + ]

1. by noteworthy, I mean campaign fodder that could help you look clever in your next politico-water cooler conversation
2. The Clear Counsel Law Blog remains your go-to source for dated pop-culture references…well second to the VH1
3. The fair seriously is a whole lot of fun, highly recommended, especially in campaign season
4. please draw what conclusions you like
5. if you write politics for a living
6. if you care for America’s image at home and abroad
7. Read the piece here, it is pretty great.
8. there is not anything I can add to the above exchanges. They are perfect, as is.
9. who runs the Fox News
10. I say that with peace and love
11. source
12. from their stances of ‘deport all immigrants, including all children, relatives, and attenuated friends’ to promulgating that ‘vaccines cause autism’ to ‘abortion is unacceptable, even to for a 10 year old girl that was raped,’ I am not convinced the republican candidates are aware that their primary is not the final round of voting. By the way, I only made up one of those three positions. Not that I particularly care about their policy stances, but one must assume that the political machine that turned Mitt Romney into Gordon Gecko last election cycle will have a field day with these less-than-mainstream political views.
13. Did you know that JEB is an acronym for John Ellis Bush?!? How did I just learn of this? He is the ATM Machine of presidential candidates!
14. Obviously, so that they can plan their Fall affront to everything Sean Hannity finds dear
15. asking my writer brothers and sisters to investigate why Sen. Sanders, as an independent-socialist, draws 10X (at least) the number of voters at his rallies, relative to anyone else running for president, must be too much to ask. Maybe these folks were duped into thinking there was going to be a flash-drum circle? There is no way to tell until someone actually asks the people why they arrive to see Sen. Sanders and no one else.
16. Hey, not a lot of Harvard Law grads look like a character from The Munsters; Sen. Cruz should be proud!
google alphabet series LLC

Google, Alphabet, & Your Small Business

Having billions of dollars at your disposal must be a lot of fun. For instance, you could use some of your money trying to develop a self-driving car, try to figure out how to use drones to deliver goods and merchandise to your consumers’ doorsteps, build massive barges in the middle of San Francisco Bay for who knows what reason1)Is it inappropriate to make a Fountainhead joke? Hopefully.. The point is: money may not buy happiness, but it will allow you to have some fun you probably could not have otherwise.

Google’s founders are swimming in money, figuratively speaking and maybe even literally2)who would be surprised if Google announced that one of its secret projects was the development of the first swimming pool full of $100 bills instead of water.. A mid-90s research project to build a better online search engine has ballooned into a behemoth technology company with interests as far flung as you can imagine. Google’s growth certainly presents a systemic organizational challenge in trying to develop the myriad of different products, projects, and business interests that Google has taken on.

 

Enter Alphabet, Inc.

On August 10, 2015, Google announced plans to organize a new corporation, Alphabet, Inc., to act as a parent company for not only Google, but also for many of Google’s other business interests. Why would Google need to add another layer of corporate structure to what appears to be an otherwise, well-oiled machine?

For starters, the parent company model will allow Google to remain flexible and diverse in its various business endeavors and still-under-development business projects. Presumably, Alphabet will also spin off countless other subsidiary companies under Alphabet3)A subsidiary company is a company that is owned 100% by the parent company, while the parent company is owned by individual shareholders. For instance, upon Alphabet’s organization, shareholders of Google stock will receive new Alphabet stock and Alphabet (the parent) will be owned by regular Joes like you and me. On the other hand, Google, now as a subsidiary of Alphabet, will have only one shareholder: Alphabet itself. . Each subsidiary will become its own separate business with its own officers, directors, and employees. Thus, it is assumed that the current arm of Google that is working on developing the self-driving car could be spun-off to a separate business entity (for example: Self-Driving Cars, Inc.), while the search engine aspect of the business will continue to operate under Google, Inc..

Google thrives on ingenuity and creativity. Spreading corporate governance more broadly will take advantage of the creative juices of its people who will theoretically take on more responsibility with new job titles of CEO, President, and Director of Let’s-Make-Stuff-Up-That-Would-Be-Totally-Awesome4)tm pending.

 

Even if you are not Google, an Alphabet may be for you

Similarly, separating out business interests creates a powerful asset-protection model that prevents one division of a company from dragging down the rest of the company in the event of a business disaster. For example, if Google’s wide-ranging business projects are currently doing business all under Google, Inc., then a liability that might arise when5)if a self-driving car goes rogue on the streets of San Jose and runs someone over. This could, in turn, affect business operations in the unrelated Google Translate department. Instead, with subsidiaries, Alphabet will isolate liabilities and protect other subsidiary companies from the dangers of liabilities caused by other aspects of the business.

Again, imagine that the self-driving car caused personal injury, and a fine personal injury attorney6)hopefully our hypothetical victim is lucky enough to be represented by lawyers as fine as our own Mr. Richards or Mr. Featherstone, Esqs. sued Self-Driving Cars, Inc., and won a court verdict of $5,000,000 in damages. With subsidiary companies, the injured person can look only to Self-Driving Cars, Inc., for payment of the court verdict. The injured person cannot look to Google Translate, Inc., to tap into its resources to pay the verdict because Google Translate, Inc., is treated by the law as a wholly separate legal entity that is not subject to the debts or liabilities of the other subsidiaries. This kind of asset protection allows Google to continue to innovate with speculative projects that may be more dangerous and prone to liability than you might expect from a company like Google Translate.

 

Dr. Canal is kind enough to provide us with an example

Google’s reorganization with Alphabet at its head does raise some interesting tips that even Jane Doe in Nevada could follow to her benefit. Most of us regular Nevadans do not have swimming pools full of $100 bills, nor are we investing our funds in the development of the first working time-machine, Delorean. However, many Nevadans do have varying business interests that could be protected from each other.

For example, consider your local dentist, Dr. Root Canal. Dr. Canal’s dental business actually consists of several different aspects: the practice of dentistry itself, the purchase, leasing, and use of medical equipment, and possibly the purchase and ownership of the building that the dental office is located. Thus, Dr. Canal actually has three separate business interests, all of which could be safely and legally protected from the other.

For example, imagine that Dr. Canal does a poor job on his next tooth extraction and his patient, Ayall B. Suing, sues him and his company, Root-Canals-R-Us, for dental malpractice. Dr. Canal loses the trial and the District Court for Clark County tells Dr. Canal and Root-Canals-R-Us that they must pay Mr. Suing $500,000 for his pain and suffering. Dr. Canal, unfortunately, kept all of his business interests (the dental practice, the dental equipment, and the office building) under just one umbrella: Root-Canals-R-Us. Thus, when Mr. Suing begins poking around for payment on his judgment, Mr. Suing first takes all of the business bank accounts, but he does not stop there. Next, he literally takes all of Dr. Canal’s examination chairs, the x-ray machine, and a box of promotional toothbrushes and even the dental floss to boot! Finally, Mr. Suing puts a lien against the building for the remaining amount of his judgment that was not covered by the other items he collected from Root-Canals-R-Us.

If Dr. Canal had followed Google’s lead, he would be in a much better situation. Dr. Canal could create separate business entities for each of his business interests: Root-Canals-R-Us to operate the actual dental practice; Dental Equipment, Inc., to own the dental equipment (which leases the equipment to Root-Canals-R-Us); and Dental Building, Inc., to own the dental building (which leases office space to Root-Canals-R-Us). Thus, when Mr. Suing looks for payment on his judgment against Root-Canals-R-Us, he will be limited to only that which Root-Canals-R-Us actually owns, which in this case would only be the business bank accounts (in general). Mr. Suing would not be able to swipe the examination chairs or put a lien on the building because those assets are owned by totally separate legal entities, which do not owe Mr. Suing anything.

 

Google, Alphabet, and the Series LLC in Nevada

Unlike with Alphabet, however, most Nevadans in these situations probably would not have a pressing need for a parent corporation to own separate subsidiaries because doing so for the average Nevadan unnecessarily adds another layer of corporate structure with minimal purpose. However, think again. Nevada is one of a handful of states that allows an ingenuous business entity called a Series LLC. In a Series LLC, the owner creates just one business entity with the State of Nevada, but then is allowed to create a “series” under the main LLC. Each series does not have to be registered with the State; only the main LLC. The beauty of this is that each separate series LLC is treated as if it is a totally separate business entity. For example, Dr. Canal can create Root Canal, LLC, as a series LLC, and then he would create Series A: Root-Canals-R-Us, Series B: Dental Equipment Company, and Series C: Dental Building Company. Thus, Dr. Canal accomplishes a parent-subsidiary type relationship (his own little Alphabet) where each series is treated as a separate business with asset protection between the different series.

Though you may not have billions to play with business ideas like Google, by creating and using a Series LLC you too can and should protect your business interests simply and powerfully. And, now that your business assets are sufficiently protected, you can finally create that Series D you always wanted: Build-a-Moonrover Company.

Footnotes   [ + ]

1. Is it inappropriate to make a Fountainhead joke? Hopefully.
2. who would be surprised if Google announced that one of its secret projects was the development of the first swimming pool full of $100 bills instead of water.
3. A subsidiary company is a company that is owned 100% by the parent company, while the parent company is owned by individual shareholders. For instance, upon Alphabet’s organization, shareholders of Google stock will receive new Alphabet stock and Alphabet (the parent) will be owned by regular Joes like you and me. On the other hand, Google, now as a subsidiary of Alphabet, will have only one shareholder: Alphabet itself.
4. tm pending
5. if
6. hopefully our hypothetical victim is lucky enough to be represented by lawyers as fine as our own Mr. Richards or Mr. Featherstone, Esqs.
crying child, screaming

Screaming at a Crying Child in a Public Place: What is the Right Thing to Do?

As a business owner, what would you do if patrons of yours had a child with them that they would (or could) not stop from crying?

Before you answer, assume that 1) the establishment is full of other customers that are both annoyed with the crying and will see what you are about to do and 2) that we are living in the era of the “hyper gotcha-media”1)tm pending where we all now have electronic devices that can easily take video of what happens around us, and will likely tattle at the first whiff of unreasonable behavior.

Not an easy hypothetical, is it2)I have a more personal anecdote. A few weeks ago I flew back to Las Vegas from New York on a late night flight [the equivalent of a red-eye going west]. This couple with at least 4 children did not purchase a seat for their two very young kids, presuming [I assume] that they would hold the child through the 6 hour flight. For whatever reason, the child cried continuously [this is an appropriate time to use the term ‘literally’] for the entire flight. If you do not know many New Yorkers, they are more likely than most to tell you exactly how they feel about a particular set of circumstances. I could see folks starring lasers at the young couple in the back of the plane, then leaning over to the person next to him/her and stage whispering nasty thoughts that I will not repeat here. I was concerned that someone was about to get up, start an altercation, and we would all end up in Denver for the night. Luckily, this did not occur. But still, what were we all supposed to do? I felt both sorry for the young couple and angry at them for not being more responsible. I imagine the customers in the following scenario felt a similar cognitive dissonance. I share this tale only so you know, before I evaluate the behavior of the folks involved in this scenario, that I am certainly not better or superior to them.?

Hopefully, if this happens to you, the following does not occur:

In Portland, ME, a few weeks ago, a young couple with their toddler daughter arrived at a small, busy, breakfast establishment. After waiting thirty minutes for a table, the couple had to wait an additional forty minutes for their food to be prepared3)those familiar with the east coast small breakfast establishments will not find this wait time surprising. Unlike the spacious kitchens in Southern Nevada, there is a finite amount of space that these folks have to cook in, and it takes a bit longer to get your food. Plus, there is no pressure from the casino to get you out of the restaurant and back on the floor.

What happened next is not very clear; it depends upon whom you ask. All I can report with certainty is that the toddler became unruly, and there was a confrontation between the toddler’s family and the restaurant owner. I will allow you to read what each party stated on the facebook, and allow you to do your best Judge Judy4)it is shame we do not have more of her. If are sensitive to belligerent language, you may want to skip the posts from Marcy’s Diner.

 

Crying child, portland maine, restaurant owner, tort

Ms. Carson then went on to write an op-ed for the Washington Post regarding the incident5)It is tough for the Post to find hard news to report without an upcoming election..oh wait.

Again, I do not know for sure, the following is not anything more than conjecture, but there seems to be an agreement that the restauranteur addressed the child directly in an unfriendly manner. I know this may shock you, loyal reader, but the internets went into a tizzy over this. Most folks have previously been similarly situated, and therefore, have a strong opinion as to what was right for the parents/restauranteur to do.

The Press Herald of Portland, ME, polled their readers to discover how the public would adjudicate this issue. Out of 5500 votes, 61% of the respondents said that they approved of the way Ms. Neugebauer handled the unruly child.6)Source  I, for one, was a bit shocked by the result. And here I thought America loved children unconditionally. Perhaps it is just when they are seen, but not heard.

I got a lukewarm take of my own, as a matter of fact! It is a bit more nuanced than most of the opinions I have seen, so please bear with me.

 

If this crying child scenario happened in Nevada, is there a potential tort?

Assuming that folks name-calling on the facebook is not the most efficacious means to resolve societal issues, is the court system the right forum? If so, assuming the mother’s account of the events is correct, do the parents have a cause of actions against the restauranteur? Before we begin, know that each state has its own tort law, so what is true in Nevada is not necessarily true anywhere else. Given what we know of the facts, it is possible that a similarly situated plaintiff in Nevada might have a cause of action against the restauranteur through Intentional Infliction of Emotional Distress(IIED) cause of action. The necessary elements of IIED are as follows:

1) the defendants’ conduct was extreme and outrageous;

2) defendants’ conduct was non-privileged;

3) defendants acted with the intention to cause plaintiffs emotional distress, or with reckless disregard for the probability for causing such distress;

4) plaintiffs actually suffered severe or extreme emotional distress; and

5) defendants’ conduct actually or proximately caused the emotional distress.7)Alam v. Reno Hilton Corp., 819 F. Supp. 905, 911 Dist. Court, D. Nevada 1993

 

If I may guess, you have read through those elements and are still not sure if these facts meet those standards. Fair enough. I am happy to elaborate in the pertinent ones. Elements 2 and 3 are easily met in our hypothetical restaurant scenario. There is no legal privilege to yell at another person’s child, and the restauranteur clearly intended to yell at the child, as expressed in her facebook post. As to the other three elements, things get a bit murky.

Was the conduct “extreme and outrageous?” That is a tough question to answer. “Extreme and outrageous” conduct “go[es] beyond all possible bounds of decency, is atrocious and utterly intolerable.”8)Id. I can hear you muttering under your breathe; more synonyms do not make the issue any more clear. The behavior of the restauranteur is what is called a question of fact that would be decided by a judge or jury.  The finder of fact would query, “is the behavior ‘extreme and outrageous’ in the eyes of the hypothetical reasonable person?” The answer again is unclear. As we saw last year with the hoopla surrounding Adrian Peterson9)the football player that was suspended for punishing his young son with a switch, mores with respect to parenting vary greatly through the country. If these facts were presented to a jury in the affluent part of the Bay Area/Park Slope, Brooklyn/Los Angeles, my guess is that the twelve, randomly selected folks would be more inclined to find yelling at another’s child as “extreme and outrageous.” If the case was tried in rural Texas, the deep south, or middle-west, I think it would be less likely.

As to the fourth element, the Alam court states “the stress must be so severe and of such intensity that no reasonable person could be expected to endure it. Moreover, the less extreme the outrage…the more appropriate it is to require evidence of physical injury or illness from the emotional distress.”10)Id. Citation omitted A similar social mores issue as above exists here. Depending on where you are, folks have different expectations of their children. Some think tough love is good for them, others think nurture is more important than nature. Considering the Las Vegas Valley is in between these two extremes, it is difficult to predict how a 12-person jury would decide.

In order for there to be a valid claim, the child would need to manifest actual harm suffered that was caused by the event. The kid would need to go from being gregarious around adults to needing multiple sessions of psychotherapy a week, for example. Even then, if the child suffered a trauma before the incident, it might be difficult to determine if this restauranteur is the actual or proximate cause of the child’s damages.

That was my long-winded way of telling you that a potential case, like most, will be fact-specific. As to the possibility of a tort, a few years ago in New York, Patti Labelle11)according to news accounts returned to an apartment building where she was staying, saw an unsupervised child, and lost her cool, to say the least12)read more here. The case did not go to trial, but Ms. Labelle decide to settle for six-figures before she was to be deposed. Although there is no telling why she settled, it is not that common for folks to pay out six-figures over frivolous claims.

 

Compassion for the Crying Child

Before we wrap up here, if I may, a few words13)#Synecdoche on sympathy, empathy and compassion. At least from the press accounts I have come across, I have yet to see my writer friends get to the underlying issue of this unfortunate incident. Comment if you disagree, but my feelings are that folks heard the details of the story, then latched onto the perspective that they were most familiar: either empathy for the toddler’s parents after they have suffered through a similar, painful episode with their own uncontrollable children, or empathy for the restauranteur as a person with no kids that who is tired of parents that cannot control their children in public.

Is this what we have become? Only able to understand perspectives we are most familiar with? Over the weekend I finished Ta-Nehisi Coates’ Between the World and Me14)Highly recommended. There are too many great parts to elaborate on in a footnote, but I must say that I deeply admire his vulnerability. The book elicited thoughts of Vollmann’s “sleepwalkers” in Europe Central, Ellison’s Invisible Man [thematically], Morrison’s Song of Solomon [again, thematically], and the comment made by David Foster Wallace to David Lipsky in Although Of Course You End Up Becoming Yourself[This is in no way an endorsement of that movie. I am about to paraphrase.] that the real heroes of our society are the ones who will let go of the cynical irony and be genuine, honest, and vulnerable about how they feel, without any regard for how the remaining cynics will react. Toward the end of the letter to his son, Mr. Coates describes an incident in New York City when he was walking with his young son and a woman of another race shoved his son out of the way as if he was not entitled any amount of human decency. Mr. Coates describes becoming agitated (as I am sure we all would) and addressing the woman in a stern manner in reference to what she had done. Other men of the woman’s race saw the conversation and stepped in and threatened to have Mr. Coates arrested for speaking to the woman in such a way. Mr. Coates went on to express his regret to his son on how he had 1) lost his cool and 2) put his son at risk through the confrontation. How many of us would have responded in the same way and been left with similar regrets?

What is most apparent about the restaurant incident is that neither party seems to have any regard for how the other side must be feeling. It is doubtful that the parents of the toddler wanted her to be crying in the restaurant for all that time15)they do not seem like malicious people from what I have seen. To respond the way the restauranteur makes it look as if she thought the parents were trying to drive away her weekend breakfast crowd. Even if she cannot understand why the parents cannot or will not stop the child from crying, would not sympathy and compassion lead to a better outcome? Bring the child a little something to eat to tide her over? How about a crayon and a piece of paper? Upon their arrival, let the parents know that there will be a bit of wait with the breakfast rush so they know what they are getting into? If these options are not functional, and the child is crying in a manner unsuitable to the owner, perhaps pull the parent(s) aside and speak to them respectfully about why the disturbance is unacceptable. To yell at a small child seems to be the worst outcome possible besides violence (as we saw from the facebook post, the restaurateur was not against that option). Not that I am judging folks here, but I cannot fathom why it is necessary to call the small child those horrible names on the facebook. It is not like the family will be returning to the restaurant.

Ah, but what about the parents? Even if it takes a village to raise a child, perhaps the villagers should be permitted to opt in? Just because you are used to the volume of your crying child, it is not fair to assume others are as well. The restaurateur, her employees, and their fellow customers deserve more respect than that. If you do not know what to do, you could always ask for help! Like Mr. Coates spoke of, as parents you are possibly putting your child at unnecessary risk by not addressing the incessant crying. How important could those pancakes possibly be? Worse, instead of trying to understand why the restauranteur would respond in an unconscious manner16)as Eckhart Tolle would put it, you chose to instigate further harm by attacking the restaurant owner on the facebook, which is what triggered the media firestorm. Clearly the parents do not want to behave this way from the comment the mother made to her child after the yelling about not wanting the young girl to grow up to be that way. So is it ok to behave that way online? Now they have turned the incident into a crying shame, for the parents and the child. And for what good? Did shaming the owner bring about the desired result? Or just create a shame cycle?

Is this a product of our friends in the media exploiting conflict for their own profit without regard for the feelings of those involved? Who is to say. No one made the participants publish responses on the facebook and Washington Post, they all made that choice. But we in the media could show more compassion as well. Clear these folks were a bit out of mind during this incident, but by turning the incident into click-bait, we have defined these poor people by their worst behavior of one weekend morning17)it would be a different story if the incident was so-called “news-worthy,” but you will have a difficult time persuading me that breakfast incident in Portland, Maine, affects any of our lives. I do not think any of us want to be defined by our worst actions. Just because we can make a snap judgments does not mean we should.

Nor will you be able to persuade me that if each party showed sympathy and compassion for one another that it would not have led to a more desired result. Anger, shame and humiliation resulted in worse outcome for all involved. It does not have to be this way! Let us follow Mr. Coates’ example and use this incident to stay more conscious and have more sympathy for one another, even if it is not clear why in the moment. Good can come of all this hoopla after all.

 

More reading for your perusal:

NY Post on Patti Labelle

The Washington Post

The USA Today

Footnotes   [ + ]

1. tm pending
2. I have a more personal anecdote. A few weeks ago I flew back to Las Vegas from New York on a late night flight [the equivalent of a red-eye going west]. This couple with at least 4 children did not purchase a seat for their two very young kids, presuming [I assume] that they would hold the child through the 6 hour flight. For whatever reason, the child cried continuously [this is an appropriate time to use the term ‘literally’] for the entire flight. If you do not know many New Yorkers, they are more likely than most to tell you exactly how they feel about a particular set of circumstances. I could see folks starring lasers at the young couple in the back of the plane, then leaning over to the person next to him/her and stage whispering nasty thoughts that I will not repeat here. I was concerned that someone was about to get up, start an altercation, and we would all end up in Denver for the night. Luckily, this did not occur. But still, what were we all supposed to do? I felt both sorry for the young couple and angry at them for not being more responsible. I imagine the customers in the following scenario felt a similar cognitive dissonance. I share this tale only so you know, before I evaluate the behavior of the folks involved in this scenario, that I am certainly not better or superior to them.
3. those familiar with the east coast small breakfast establishments will not find this wait time surprising. Unlike the spacious kitchens in Southern Nevada, there is a finite amount of space that these folks have to cook in, and it takes a bit longer to get your food. Plus, there is no pressure from the casino to get you out of the restaurant and back on the floor
4. it is shame we do not have more of her
5. It is tough for the Post to find hard news to report without an upcoming election..oh wait
6. Source 
7. Alam v. Reno Hilton Corp., 819 F. Supp. 905, 911 Dist. Court, D. Nevada 1993
8. Id.
9. the football player that was suspended for punishing his young son with a switch
10. Id. Citation omitted
11. according to news accounts
12. read more here
13. #Synecdoche
14. Highly recommended. There are too many great parts to elaborate on in a footnote, but I must say that I deeply admire his vulnerability. The book elicited thoughts of Vollmann’s “sleepwalkers” in Europe Central, Ellison’s Invisible Man [thematically], Morrison’s Song of Solomon [again, thematically], and the comment made by David Foster Wallace to David Lipsky in Although Of Course You End Up Becoming Yourself[This is in no way an endorsement of that movie. I am about to paraphrase.] that the real heroes of our society are the ones who will let go of the cynical irony and be genuine, honest, and vulnerable about how they feel, without any regard for how the remaining cynics will react.
15. they do not seem like malicious people from what I have seen
16. as Eckhart Tolle would put it
17. it would be a different story if the incident was so-called “news-worthy,” but you will have a difficult time persuading me that breakfast incident in Portland, Maine, affects any of our lives
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