Court of Appeals Protects Recurrent Retirement Plan Contributions from Post-Judgment Attachment
Posted on Apr 23, 2018 by
Kristen N. Nichols
A recent, very debtor-friendly decision of the South Carolina Court of Appeals essentially put most routine retirement account contributions beyond the reach of creditors seeking to satisfy past judgments. The court made clear its strong stance toward protecting individuals’ retirement accounts and, for one of the first times, explicitly said that funds deposited into retirement accounts generally can’t be undone as fraudulent transfers.
The debtor in the case, First Citizens Bank v. Blue Ox, signed a confession of judgment after his LLC had defaulted on loan payments owed to its bank. After failing to pay the judgment, the debtor contributed money to his retirement accounts as well as a 529 college savings account. The bank contended that it could attach these post-judgment contributions because they were fraudulent transfers and therefore not subject to protections otherwise provided to retirement accounts under Sections 5-41-30(A)(13) and (14) of the South Carolina Homestead Exemption Act. Rejecting the bank’s claims (and reversing the lower court), the Court of Appeals ruled that Statute of Elizabeth, which generally prohibits fraudulent conveyances, did not apply because the movement of money did not transfer ownership from the debtor but rather converted the funds into protected assets that still belonged to him.
The Court of Appeals further noted that while there were several “badges of fraud” present, on balance there was no fraudulent intent because the “contributions were limited in amount, were not secretive in nature, and most tellingly, were in line with [the debtor’s] long-standing pattern of investing in his retirement – conduct that is encouraged by the very existence of [protections typically afforded to IRAs and 401(k) accounts under the Homestead Exemption Act].” continue reading
Mediation: A Mandatory (and Often Better) Way to Resolve Certain Workers’ Comp. Claims
Posted on Apr 16, 2018 by
Cynthia C. Dooley
South Carolina now mandates the use of mediation as a way to help resolve certain workers’ compensation claims. These are defined in 67-1802 of the state Workers’ Compensation Commission Regulations, but generally, they are cases that would be litigation-intensive and highly contested – e.g., occupational disease, contested death and mental injury claims.
The goal of promoting timely and cost-effective resolutions largely is being achieved. Practically speaking, there are several aspects of mediation that make it a good alternative to a hearing before a commissioner of the Workers’ Compensation Commission.
The Traditional Hearing Route
Historically, most workers’ compensation cases have been decided by one of the state’s seven commissioners. While the commissioners are experienced and more than able to render fair decisions, time factors often limit the ability of attorneys and claimants to fully explain their respective positions. In 2017, the Commission had 10,458 cases docketed for a hearing. A normal case is scheduled to last from one to two hours. Once docketed, on average the case may take at least three months to actually be heard. After the hearing, commissioners often must review reams of evidence before a ruling is made. Although the ruling is binding on the parties, there is always the potential for appeal, thus extending the process and increasing costs. The hearing also submits all issues to the interpretation of one person. By contrast, mediations often last for an entire day giving the parties time to fully explore and present their respective positions. continue reading
The Importance of Selecting a Strong Trademark
Posted on Mar 13, 2018 by
Sarah Day Hurley
When starting a new business, an entrepreneur has many things to consider, including financing, marketing, leases, employees, and insurance, not to mention a multitude of other details concerning the operations of the business. One item that should be carefully considered when starting a new business is the selection of a strong trademark.
A trademark is more than just a name. A trademark can be any word, name, logo, symbol, or device that is used to identify and distinguish your company’s goods and services in the marketplace. continue reading
Free speech in the workplace: Can private-sector employees be fired for political opinions?
Posted on Feb 27, 2018 by
Hannah D. Stetson
An increasingly divisive political climate has put the exercise of constitutional freedoms in the spotlight. While the First Amendment states, in relevant part, that “Congress shall make no law . . . abridging the freedom of speech,” the First Amendment’s restrictions do not apply to private-sector employers. In other words, an employee’s freedom of speech and expression can have limits and repercussions in the private-sector workplace.
The polarizing political discourse has been on display along NFL sidelines since former San Francisco 49ers quarterback Colin Kaepernick began kneeling during the national anthem in 2016. Hundreds of NFL players and other professional athletes have joined the protests, and others have followed in solidarity.
At the beginning of the NFL season, President Donald Trump urged league owners to fire players whom he said showed a “total disrespect for everything we stand for.” But is it legal for an employer to fire employees for expressing their political opinions?
South Carolina is an “employment at-will” state, which means that either an employer or an employee can terminate the employment relationship at any time, for any reason, if such termination is not in violation of state or federal law. Private sector employers always will have a certain degree of control over employees’ speech. For instance, it is appropriate for a company to prohibit employees from discussing trade secrets or revealing confidential information. Employers also can prohibit harassing speech or conduct in the workplace. continue reading
Mediation is key to efficient, cost-effective e-discovery
Posted on Feb 06, 2018 by
Richard S. Dukes
Nearly everything we do leaves a trail of data, and the abundance of electronic evidence has transformed the way legal disputes are handled from beginning through resolution.
Think of all the different ways we communicate with others – either directly, with text messages or emails, or passively, where social media posts may be viewed by friends or connections. Before electronic evidence became the norm, printed documents relevant to a case were placed in a file, boxed and stored along with countless others to be turned over to opposing counsel, who had to sort through it all by hand. Now, the realm of discoverable digital data has grown exponentially, making the ability to search efficiently even more important. The Radicati Group, a technology market research firm, estimated that 269 billion emails were sent per day in 2017. That’s a lot of data.
Each piece of data helps tell a story, and that data can be used as evidence in a lawsuit. Preservation, retrieval, review, and production of electronic data can dramatically affect the expense of litigation, and controlling those costs through careful management of the discovery process is the key benefit of employing a mediator to assist with discovery. continue reading
Opioid Abuse Declared Statewide Health Emergency
Posted on Dec 21, 2017 by
Robyn W. Madden,
James H. Goldin
Governor McMaster Issues Directive to Limit Opioid Prescriptions
On Monday, December 18, 2017, Governor Henry McMaster declared the opioid crisis a statewide public health emergency, and issued two Executive Orders focused upon combating the Opioid epidemic in South Carolina.
The Authority to issue a statewide health emergency is set forth in S.C. Code Ann. §§ 44-4-130(P),(R) and S.C. Code Ann § 1-3-420, which provide that a statewide health emergency may be declared when the governor opines that a qualifying health condition poses a substantial risk of a significant number of human fatalities.
Prescription pain medication specifically noted as associated with the epidemic included hydrocodone, oxycodone, codeine, morphine, heroin, and analogs of the synthetic opioid analgesic fentanyl, including carfentanyl. continue reading
Lessons from Equifax: Preventing and Responding to Cyberattacks on Your Business
Posted on Nov 27, 2017 by
Carmelo B. Sammataro
The recent cyberattack on the credit reporting agency, Equifax, is being called one of the worst data breaches ever. The incident potentially compromised the personal information of 145 million Americans, including nearly half of South Carolina residents.
An industry report counts more than 1,000 data breaches last year at U.S. businesses and governmental agencies, a 40% increase over 2015. On average, a breach will cost a business $7 million, according to research.
A data breach is both a technical and legal problem. With so much at stake, what can businesses do to prepare for inevitable cyberattacks, limit their potential liability and protect their customers’ sensitive data? continue reading
Finding Your Next GC: Succession Planning for Corporate Law Departments
Posted on Nov 03, 2017 by
C. Pierce Campbell
The general counsel of a business is integral to executing the company's strategy, handling litigation, overseeing compliance and, ultimately, the bottom line. So why do corporate law departments tend to pay so little attention to succession planning for the role?
Many GCs simply feel they don’t have enough time to look ahead, given day-to-day work and immediate needs to advance their strategic priorities. Moreover, not everyone thinks that succession planning is in his or her best interest. And, all too often, a burgeoning plan is sabotaged by a lack of progress in identifying and training successors.
How can a law department break through inertia and make a solid GC succession plan? continue reading