Displaying 11 category results for August 2007.x

Oregon court filing fees change September 1

By Lori Irish Bauman
August 31, 2007

Starting September 1, many circuit and appellate court filing fees will change.  The changes reflect, among other things, a temporary surcharge that the legislature imposed to fund an evaluation of court facilities.  The Oregon courts' web site recommends checking on the correct fee amounts before filing with any state court.

What Do Employees Want?

By John Walch
August 30, 2007

A recent survey of over 1,200 employees indicates that exceptional health benefits are the most desired benefit currently not offered by employers.  In fact, comprehensive health benefits are one of the three top reasons why survey respondents have stayed with their employers.  And among benefits employees do not have, 100% health care coverage is considered more desirable than competitive salary. 

The survey also indicated that 62% of employees are currently actively or passively looking for a new job; 41% do so while at work.  Given that degree of potential employee loss, employers should pay careful attention to what benefits will encourage employees to stay.  In addition to health care coverage, competitive salary and compressed work weeks were top priorities.  401(k) matching contributions and tuition reimbursement programs were also popular with employees.

We have previously mentioned the skyrocketing cost of providing health coverage to employees.  What options are available to an employer who cannot afford increasing coverage?  The best may be to treat employees with respect and make them feel rewarded for their efforts.  The survey reports that 32% of employees who are not satisfied with their current employer would become so if they were treated better.  And 26% of employees said feeling rewarded and inspired was a leading reason they stay with their current employer.  Almost 20% of employees with fewer than 5 years' tenure left because they felt they lacked inspiring work. 

Promises by an unknown employee can't create an express warranty under the UCC

By Lori Irish Bauman
August 30, 2007

In a sale of goods under the Uniform Commercial Code, the statements of an unidentified employee aren't sufficient to prove an express warranty, according to a case decided yesterday by the Oregon Court of Appeals.  In East County Recycling, Inc. v. Pneumatic Construction, Inc., the court addressed an alleged representation about a baling machine's ability to operate in Oregon's wet weather.  The buyer of the machine sued the seller when the baler didn't hold up to the elements.  The buyer claimed that, before it made the purchase, an unidentified employee of the seller promised over the phone that the baler would work outdoors, thereby creating an express warranty as to the machine's characteristics under the UCC

Because the identity of that employee was unknown, the buyer could not show that the employee had authority to make representations about the machine on behalf of the seller.  Lacking that evidence, the buyer was unable to prove the existence of an express warranty, and the Court of Appeals affirmed summary judgment for the seller.

This case shows that, when making a big-ticket purchase, it's critical to get in writing any representations about the product's features and characteristics.  Testimony about an oral representation by the other side may not stand up in court.

Antitrust commentary in the Portland Business Journal

By Lori Irish Bauman
August 27, 2007

This week's Portland Business Journal has a commentary by blog contributor Lori Irish Bauman on the recent US Supreme Court opinion that overturned a 96-year-old antitrust precedent.  Here's a link to an on-line excerpt (subscription required for the complete article).

See our earlier coverage of the case, Leegin Creative Leather Products, Inc. v. PSKS, Inc., here.

Creating a real property easement in Washington

By Roger Dunaway
August 26, 2007

Earlier this week the Washington Court of Appeals Division III ruled that recording a document labelled an "easement" is not by itself sufficient to create a real property easement.

In Zunino v. Rajewski, a property seller created and recorded a document at the time of sale entitled "Private Road and Utility Easement." The document was signed only by the seller. The statutory warranty deed given to the buyer did not reserve or grant an easement. The court noted that the creation of an easement is governed by the statute of frauds, which requires that an easement be by written deed. The deed must convey land and must be in writing, signed by the party to be bound, and must be acknowledged. Because the document entitled "easement" did not convey land, it did not create a valid easement.  In addition, the burdened property owner's agreement to the easement, which is a vital element in the creation of an easement, was lacking in this case.

Washington counties can't use eminent domain power to rehabilitate salmon habitat

By Brenda Molner
August 15, 2007

Yesterday in Cowlitz County v. Martin, the Washington Court of Appeals, Division Two, held that Washington's Salmon Recovery Act ("SRA"), RCW 77.85 et seq., does not authorize the State or its entities to condemn private property for salmon habitat restoration.  The Court not only found there was nothing in the SRA granting a county, city or tribal government authority to condemn private property, but that there was significant indication to the contrary in the statute.

The Court also found the condemnation could not proceed under RCW 8.08 et seq., the statute that confers the power of eminent domain to Washington counties.  Following the principal that preference should give given to a more specific and more recent statute that addresses the same issue as an older, broader statute, the Court found the SRA covered the issue of salmon fish passage restoration and protection and that the Legislature clearly elected not to grant eminent domain power to protect this public interest.

Diversify or Else!

By John Walch
August 14, 2007

Last August the federal Pension Protection Act of 2006 (PPA) became law.  One of the PPA's many provisions requires that company-sponsored retirement plans allow participants to diversify out of company stock in their account.  Prior to the PPA, plans could and frequently did place severe restrictions on employees selling company stock.  Employers did not want employees dumping large quantities of company stock and thereby sending a very negative signal to investors.

The PPA required plans to make two changes.  First, the PPA mandated minimum diversification requirements.  For example, participants must have at least three different non-company stock investment options and must be allowed to diversify company stock investments into the other options at least quarterly.  Second, the plan must provide a notice to participants that explains their right to diversify and how important diversifying retirement assets is.  This notice must be given at least 30 days before the participant first becomes eligible to diversify assets -- usually after three years of service. 

On Friday, the U.S. Dept. of Labor published final regulations that include a $100 per day penalty for failing to provide a timely notice.  That doesn't sound like much, but do the math: forgetting to send a notice to 10 participants until a year later when the DOL audits the plan can cost $365,000.  The final regulations (and the penalty) are effective October 9, 2007.  However, the diversification and notice requirements were effective January 1, 2007.

Attorney's failure to approve makes contract unenforceable, Court of Appeals holds

By Lori Irish Bauman
August 11, 2007

When two parties agree on all material terms of a contract, the agreement may be unenforceable if one of the parties makes the transaction subject to review by his lawyer.  That was the conclusion last week by the Oregon Court of Appeals in Oregon Southwest, LLC v. Kvaternik.  The parties negotiated the sale of real property, agreeing on the purchase price and payment terms.  The written agreement included a provision that the transaction was "subject to review and approval" by the seller's attorney.  After later consulting with his attorney, the seller proposed alternative financing terms.  The buyer sued for specific performance of the original agreement, and the trial court granted summary judgment in favor of the buyer.  Judge Schuman writing for the Court of Appeals reversed, holding that a condition precedent -- the attorney's approval -- never occurred, negating the contract.

Governor signs bill limiting non-competition agreements

By Lori Irish Bauman
August 8, 2007

Earlier this week Gov. Ted Kulongoski signed into law Senate Bill 248, which significantly restricts Oregon employers' ability to require employee non-competition and arbitration agreements.  The new law applies to agreements entered into beginning January 1, 2008.  See our earlier coverage of the legislation, including a description of its key elements, here.

The Oregon Court of Appeals' internal practices are on the web

By Lori Irish Bauman
August 6, 2007

The Oregon Court of Appeals recently released an update of its Internal Practices Guidelines.   According to a statement by Chief Justice David Brewer, "to save printing costs, avoid reliance on outdated materials, and more quickly circulate updates," the guidelines will be distributed primarily via the court's web site.

Also new on that site are the results of a March survey of the bench and bar on the quality of the Court of Appeals' work.  The results are overwhelmingly positive.  For example, 80.4% of respondents agreed that "the Court of Appeals' written opinions reflect thoughtful and fair evaluation of the parties' arguments." The lowest score -- with 63.1% agreement -- came in response to the statement that the court handles its caseload in an expeditious manner.