Family Law: Notice of Attorney Fee Lien

Case: Richard A. Clem v. Paul J. Watts 
by Mike Kohlhaas, Bingham Greenebaum Doll (with thanks to Tamara McMillian)

While this is not a family law case per se, I thought it might be of interest to many of you. The Indiana Court of Appeals has held that the attorney fee lien statute requires that a notice of intent to hold an attorney fee lien be filed within 60 days after entry of the judgment in question, and filing it prior to the entry of the judgment does not result in a valid lien for the attorney.

In the facts of the case, Wife changed counsel while her divorce was pending. The discharged attorney filed his notice of attorney fee lien for $5,649 within a few weeks of withdrawing. About a year later, the final decree was issued, which included an order for Husband’s counsel to pay $29,749 to Wife, using funds from Husband. Husband’s counsel made the distribution to Wife without regard to the fee lien filed by Wife’s prior counsel. The Court of Appeals held that the fee lien was not valid, since it was filed prior to the subject judgment being entered. The Court rejected the argument that the statute’s requirement that the fee lien be filed “not later than sixty (60) days after the date the judgment is rendered” includes any date prior to the judgment being rendered.

To view the text of this opinion in its entirety, click here: Richard A. Clem v. Paul J. Watts

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James A. Reed and Michael R. Kohlhaas of Bingham Greenebaum Doll represent clients in a wide spectrum of relationship transition and wealth planning matters, including premarital agreements, estate planning, cohabitation, separation, divorce (especially involving high net worth individuals and/or complex asset issues), custody, parenting arrangements, adoption, and domestic partnerships. Bingham Greenebaum Doll, a multidisciplinary law firm serving regional, national, and international clients, is the fourth-largest law firm in Indiana. The firm’s main practices include corporate, property, litigation, labor, government law, and personal services law. Visit the firm’s website at www.bgdlegal.com.

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

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I.P. Blog: Third Member of International Computer Hacking Ring Pleads Guilty to Hacking & Conspiracy to Steal Intellectual Property; Charges Against Indiana Defendant Pending

By: Paul B. Overhauser Publisher: Indiana Intellectual Property Law News

Delaware – A third member of an international computer hacking ring has pleaded guilty to conspiring to break into computer networks of prominent technology companies to steal more than $100 million in intellectual property and other proprietary data.

Nathan Leroux, 20, of Bowie, Maryland, pleaded guilty to conspiracy to commit computer intrusions and criminal copyright infringement based on his role in the cyber theft of software and data related to the Xbox One gaming console and Xbox Live online gaming system, and popular games such as the “FIFA” online soccer series; “Call of Duty: Modern Warfare 3;” and “Gears of War 3.” Leroux has been in custody since attempting to flee into Canada from Buffalo, New York, on June 16, 2014. A sentencing hearing is set before U.S. District Judge Gregory M. Sleet of the District of Delaware on May 14, 2015.

Sanadodeh Nesheiwat, 28, of Washington, New Jersey, and David Pokora, 22, of Mississauga, Ontario, Canada, previously pleaded guilty to the same conspiracy charge on Sept. 30, 2014. They remain in custody pending their sentencing hearings, which are scheduled for April 2015. Pokora’s guilty plea is believed to have been the first conviction of a foreign-based individual for hacking into U.S. businesses to steal trade secret information. Charges against a fourth defendant, Austin Alcala, 19, of McCordsville, Indiana, remain pending.

According to Leroux’s admissions in connection with his guilty plea, he was part of the hacking conspiracy between January 2011 and September 2012. During that period, hacking group members located in the United States and abroad gained unauthorized access to computer networks of various companies, including Microsoft Corporation, Epic Games Inc., Valve Corporation and Zombie Studios. The conspirators accessed and stole unreleased software, software source code, trade secrets, copyrighted and pre-release works, and other confidential and proprietary information. Members of the conspiracy also allegedly stole financial and other sensitive information relating to the companies – but not their customers – and certain employees of such companies.

Specifically, the data theft targeted software development networks containing source code, technical specifications and related information for Microsoft’s then-unreleased Xbox One gaming console, as well as intellectual property and proprietary data related to Xbox Live and games developed for that online gaming system.

Leroux admitted in court that he and others used the stolen intellectual property to build, and attempt to sell, counterfeit versions of the Xbox One console before its public release in November 2013. In July 2013, the FBI intercepted a counterfeit console built by Leroux, which was destined for the Republic of Seychelles.

Leroux also admitted that he developed a software exploit that allowed him and others to generate millions of “coins” for the FIFA soccer games playable on the Xbox Live platform. These coins are the virtual, in-game currency used to build a “FIFA Ultimate Team” in the games. Without the authorization of Electronic Arts, the intellectual property rights holder to the FIFA games, Leroux and others sold bulk quantities of the “FIFA coins” via online black markets.

The value of the intellectual property and other data stolen by the hacking ring, as well as the costs associated with the victims’ responses to the conduct, is estimated to range between $100 million and $200 million. To date, the United States has seized over $620,000 in cash and other proceeds related to the charged conduct.

This case was investigated by the FBI, with assistance from the Criminal Division’s Office of International Affairs, the U.S. Department of Homeland Security’s Homeland Security Investigations and Customs and Border Patrol, and the U.S. Postal Inspection Service. The investigation also has been coordinated with the Western Australia Police and the Peel Regional Police of Ontario, Canada.

The case is being prosecuted by Trial Attorney James Silver of the Criminal Division’s Computer Crime and Intellectual Property Section and Assistant U.S. Attorney Edward J. McAndrew of the District of Delaware.

Assistant Attorney General Leslie R. Caldwell of the Justice Department’s Criminal Division, U.S. Attorney Charles M. Oberly III of the District of Delaware and Special Agent in Charge Stephen E. Vogt of the FBI’s Baltimore Field Office made the announcement.

Plea Agreement

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Paul B. Overhauser, Publisher, Indiana Intellectual Property Law News

Overhauser Law Offices, LLC provides intellectual property services including patents, trademarks, copyrights and infringement litigation. Whether you’re an entrepreneur launching your first invention or a corporation looking for a litigation specialist, we have the legal experience to meet your goals.

To learn more about how Overhauser Law Offices can help you, browse our website to meet our lawyers and peruse our practice areas.  Then contact us, and we’ll put our expert team to work for you.

© 2015

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

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Negotiation Blog: Must Haves for Negotiating Deals

Notes on Negotiations
By Marty Latz, Latz Negotiation Institute

“What do we really need in almost every agreement, from a negotiation perspective?” This critical question points to the core of many negotiations. After all, if you can’t achieve your “must haves” in a negotiation, you’re usually better off walking away and not doing the deal.

So what should be a “must have” in most, if not all, of your deals?

1. Elements satisfying everyone’s interests

It is natural and necessary to ensure our deals satisfy our most fundamental interests. If selling a business, does the final price bring in sufficient financial security to justify losing the growth potential and annual income over time?

Does that new job provide enough potential and responsibility to warrant a cross-country move? Is the neighborhood for that new house child-friendly?

What is less natural, but still necessary, is to evaluate whether the deal satisfies your counterpart’s minimum interests. Why are they willing to sign?

Of course, you can’t always know for sure, especially if they hold their cards close to their vest.

But if your agreement does not appear to be in your counterpart’s interests – yet they still seem willing to sign – it is a red flag. Investigate more. Something may be going on that could destroy the deal later.

2. Incentives to ensure everyone’s compliance

Make sure the agreement includes clear incentives to the parties to comply with their commitments. No one can predict the future. But circumstances change and commitments made today may not be so appealing tomorrow.

Include incentives – financial and otherwise – significant enough to account for future changed circumstances.

A legal right to enforce an agreement is one thing. An unambiguous clause spelling out the consequences if your counterpart does not do A, B and C, thus materially breaching the agreement, is another.

And make those consequences worse for your colleague than complying.

A colleague recently found out his Fortune 500 partner on a major deal decided to pull out of the deal. It did so knowing it was a breach. Fortunately, my colleague had insisted in their agreement on a clause spelling out the specific financial consequences of such a breach. While not ideal, my colleague ended up with a much better result than if no such clause existed.

And the lawyers didn’t end up eating up everything with their fees.

3. Parties’ psychological commitment to deal

Secure, long-lasting deals occur when everyone feels like they got a decent deal. Not perfect. Sufficient. You do not want the other side resenting the deal the day after, because then they will immediately start looking to undermine or get out of it.

How can you do this? Do not insist on getting every single penny out of them, even if you can. At the least, make the last concession. This will let them feel like they got a bit of a win at the end.

4. Appropriate legal language

Most significant deals involve lawyers and specific legal language and provisions. Do not underestimate their impact. While these may seem insignificant at the time of the deal, the specific language and details can be hugely important down the line. Make sure you understand them and the risks associated with them.

Latz’s Lesson: Insist on satisfying your mutual interests in long-term deals – now and, if circumstances change, in the future.

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Marty Latz is the founder of Latz Negotiation Institute, a national negotiation training and consulting company, and ExpertNegotiator, a Web-based software company that helps managers and negotiators more effectively negotiate and implement best practices based on the experts’ proven research.  He is also the author of Gain the Edge! Negotiating to Get What You Want (St. Martin’s Press 2004). He can be reached at 480-951-3222 or Latz@ExpertNegotiator.com

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

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Family Law Case Review: Trial Court Reduces Mothers Parenting Time; Imputed Income Based on Voluntary Underemployment: Holds Mother in Indirect Contempt

Case: In Re: The Marriage of: Meleeka Clary-Ghosh v. Michael Ghosh 
by Mike Kohlhaas, Bingham Greenebaum Doll

HELD: Where trial court reduced Mother’s parenting time, but not to an amount less than the Indiana Parenting Time Guidelines schedule, no finding of endangerment or impairment was required.

HELD: Trial court acted within its discretion when it imputed income to Mother in its child support recalculation, based upon evidence of Mother’s voluntary underemployment, her lifestyle, and her access to and use of funds that substantially exceeded her claimed income.

HELD: Trial court was within its discretion to hold Mother in indirect contempt, and order a related attorney fee award, where Mother failed to contribute to court-ordered school expenses of the child, despite having an ability to do so.

HELD: Trial court was within its discretion to deny Mother’s request for a parenting time coordinator; the trial court has authority to reserve such decision making for itself.

FACTS AND PROCEDURAL HISTORY:
Father and Mother divorced, with one child, in 2010. Father was awarded legal custody and primary physical custody of the child, subject to Mother’s parenting time schedule. Mother’s schedule was “IPTG plus,” with a midweek parenting time was an overnight and her weekends were extended until Monday morning. No child support payment had been ordered between the parents in the original Decree.

At some point, acrimonious litigation ensued and numerous motions and petitions were filed by both parties.

Following a hearing, the trial court found Mother in contempt for not paying approximately $7300 in educational expenses for the child. In addition, an attorney fee award of $8,000 was granted to Father. Also, a new child support order was issued based upon Mother being imputed to $40,000 year of income, even though she was a graduate student who claimed actual income of only a fraction that amount.

Finally, the trial court reduced Mother’s parenting time to a schedule very similar to the IPTG, and denied Mother’s request for the appointment of a parenting time coordinator. Mother appealed.

The Court of Appeals wholly affirmed the trial court’s order. On the child support modification, the Court concluded that the trial court’s theory that Mother was voluntarily underemployed and had access to various bank accounts and family money was supported by the evidence. Thus, imputing Mother to $40,000/yr in its child support calculation was within discretion.

On the modification of parenting time, the Court rejected Mother’s argument on appeal that the trial court could not reduce her parenting time absent a finding of endangerment or impairment. Instead, the Court noted that a reduction of parenting time, so long as it does not drop below the IPTG schedule, can be implemented properly based upon only the best interests of the child, and evidence to support those best interests were presented into evidence.

Next, the Court concluded that the trial court was within its discretion in its contempt order against Mother and its attendant attorney fee award. Evidence was presented as to Mother’s financial resources and lifestyle during the period she was not paying for child’s educational expenses that supported a conclusion that Mother’s failure to comply with the court’s orders was willful and deliberate.

Finally, since a trial court may properly retain parenting time decisions for itself, a denial of a motion for a parenting time coordinator — here, requested by Mother — was within its discretion.

To view the text of this opinion in its entirety, click here: In Re: The Marriage of: Meleeka Clary-Ghosh v. Michael Ghosh

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James A. Reed and Michael R. Kohlhaas of Bingham Greenebaum Doll represent clients in a wide spectrum of relationship transition and wealth planning matters, including premarital agreements, estate planning, cohabitation, separation, divorce (especially involving high net worth individuals and/or complex asset issues), custody, parenting arrangements, adoption, and domestic partnerships. Bingham Greenebaum Doll, a multidisciplinary law firm serving regional, national, and international clients, is the fourth-largest law firm in Indiana. The firm’s main practices include corporate, property, litigation, labor, government law, and personal services law. Visit the firm’s website at www.bgdlegal.com.

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

Posted in Family Law Case Review0 Comments