In Back to the Future III, Mary McFly tries to explain to the Doc, “hey Doc all the best stuff is made in Japan.” Twenty years later we can say the same for China. China is one of the world’s largest producers of good, many of which are consumed here in the United States. With the rise in good imported from China, invariably, comes a rise in litigation against Chinese companies, producers and individuals. But how does one go about serving a Chinese entity? Simple.
Service of an entity or person in China under the Hague Convention on Service must be done through the designated Chinese Central Authority in Beijing, which is the Bureau of International Judicial Assistance, Ministry of Justice of the People’s Republic of China. To accomplish this, the U.S. party must submit the following to China’s Ministry of Justice:
- A completed United States Marshall Form USM-94
- The original English language version of the documents to be served (the summons must have the issuing court’s seal)
- A Mandarin Chinese language translation of all documents to be served.
- A photocopy of each of these documents
- A payment of $100 UDS by an international payment order, payable to the Supreme People’s Court of the People’s Republic of China.
China’s Ministry of Justice will then send the service documents to the appropriate local court. That local court will then effect service. Chinese courts are fairly slow to send out service, repeatedly calling and emailing both the court itself and the Ministry of Justice can often expedite service. Service typically takes between one and three months.
With the Federal Government unable to agree on anything, vital privacy issues have fallen into the laps of State Legislatures. State legislatures now must deal with growing public concern about the collection and trade of personal data. In response to their constituents concern, and in the wake of Federal Government inaction, several states proposed a new series of privacy laws which range from limiting how schools can collect student data to deciding whether the police need a warrant to track cellphone locations.
The NYT Reports:
This year, Texas passed a bill…that requires warrants for email searches, while Oklahoma enacted a law meant to protect the privacy of student data. At least three states proposed measures to regulate who inherits digital data, including Facebook passwords, when a user dies.
Some of the bills extend to surveillance beyond the web. Eight states, for example, have passed laws this year limiting the use of drones, according to the American Civil Liberties Union, which has advocated such privacy laws. In Florida, a lawmaker has drafted a bill that would prohibit schools from collecting biometric data to verify who gets free lunches and who gets off at which bus stop. Vermont has limited the use of data collected by license plate readers, which are used mostly by police to record images of license plates.
California, long a pioneer on digital privacy laws, has passed three online privacy bills this year. One gives children the right to erase social media posts, another makes it a misdemeanor to publish identifiable nude pictures online without the subject’s permission, and a third requires companies to tell consumers whether they abide by “do not track” signals on web browsers.
With vital privacy and legal issues at stake, it is great to see State Legislatures moving forward to protect the privacy rights of citizens, while it’s business-as-usual in Washington.
Looking for a break from the law? Need something a little more light and fun to brighten up the week? Check out my new thriller novella. After years on the run, Jake Barnes is confronted with his past. In order to keep from being caught by his former partner turned bounty hunter and dragged back to face his past, a beautiful woman proposes a plan to help Jake escape, so long as he goes through with her dastardly plan. Available for Kindle at Amazon.
Click on the cover above or Get it here: http://www.amazon.com/The-Proposition-John-Risvold-ebook/dp/B00GBFV5AM/ref=sr_1_2?ie=UTF8&qid=1383238259&sr=8-2&keywords=john+risvold
Every third car in the city of Chicago seems to be a cab. While this might be an over-estimate, there is no doubt that it is very easy to catch a cab in the Windy City. However, when you get in a cab, keep in mind, that the cab driver is more of an independent contractor than he is an agent of the cab company who owns the vehicle. Pursuant to Section 9-112-080(b)(7) of the Chicago Municipal Code, taxis must be affiliated with a licensed affiliation. This affiliation requirement does not create an agency relationship as a matter of law between the taxi owner and the affiliation. Daniels v. Corrigan, 382 Ill. App. 3d 66, 75 (1st Dist. 2008).
In Daniels, the court recognized the right to control the manner in which the work is done as the most important factor in determining the existence of an agency relationship. Id at 75. The court considered and rejected the argument that the City of Chicago Municipal Code definition of “affiliation” supports a finding of agency. The Daniels court found, as a matter of law, that section 9-112-010 did not make the cab driver an agent of the cab affiliation.
The Plaintiff in Daniels also argued that the cab affiliation’s requirement that its affiliates paint their cabs with its color and insignia, and that affiliates not place any advertising or markings on their vehicles that were not approved by the affiliation in its sole discretion were factors to be weighed in determining agency. The court disagreed, explaining that the cab affiliation was complying with its obligations under the Chicago Municipal Code. Further, the affiliations have a strong interest in protecting its colors and logo, and mere protection of a trade name does not create an agency relationship. Daniels at 79-80. The court concluded that the corporate defendants did not exercise the requisite control over the cab driver to establish an agency relationship. Id.
Pursuant to Section 9-112-360(a) of the Chicago Municipal Code, taxis belonging to an affiliation must display that affiliation’s uniform color and scheme. Further, the Code requires that all taxicabs must have the physical medallion affixed to the hood of the taxi, which represents the physical license. See Section 9-112-279. According to the court in Daniels, the required uniform color and schemes on the exterior of the taxicab does not create an agency relationship.
Similarly, Rule 3.04 for Taxi Medallion License holders states that all taxicabs licensed by the City of Chicago must be kept in a safe and undamaged condition. The Rule states that the interior of the vehicle shall be kept free from all waste paper, cans, garbage or any other item not intrinsic to the vehicle or to the conduct of operating a taxicab. The interior is also to be free from any material which a reasonable person would find noxious or unpleasant.
All of these municipal regulations lead up to one specific court ruling, which frees cab companies from vicarious liability in accidents involving cabs. Absent an agency relationship between driver and owner, mere ownership of a vehicle involved in an accident is insufficient to hold the owner liable. Prewitt v. Hall, 113 Ill.App.3d 198, 252 N.E.2d 43 (1st Dist. 1969). Also, Bell v. Reid, was more direct saying:
In order for the owner of a motor vehicle to be held liable for the negligent operation of the vehicle by another, it must be shown that the relationship of principal and agent, or master and servant, existed between the owner and the driver at the time of the negligent operation.
118 Ill.App.3d 310, 73 Ill.Dec. 868, 454 N.E.2d 1117 ( 5th Dist. 1983).
No agency relationship exists between cab companies and the taxi driver. As a result those cab companies owe no duty to persons injured in accidents involving the taxis they own and cannot be held liable under a theory of vicarious liability for mere ownership of the taxicab.
 The City of Chicago Municipal Code defines a taxicab affiliation as “an association of licensees organized and incorporated for the purpose of providing its members with (1) a Chicago business address, (2) telephone number registered to the taxicab affiliation, (3) uniform color scheme, (4) trade name or emblem, (5) an approved two-way dispatch system, (6) insurance, (7) the designation of an authorized registered agent.” See Chicago Municipal Code 9-112-010.
"I'm the Boss. What can I see?"
As I represent employers of many different industries and of all business sizes, I am frequently asked to keep clients up to date and informed on new policies and court rulings that might affect their rights to access employee social media. Technology and Social Media Sites have become increasingly influential not only in our private lives but our work environments as well.
The Publishing Law Institute has developed a new manual for practitioners hoping to hone their legal skills while maximizing their social media reach. The manual is filled with both helpful tips and up to date legal analysis that will help practitioners of all types utilize social media both effectively and ethically. Social Media and the Law is available to readers of the blog for 20% off for a limited time. Click the here to get yours today.
The complex tort of malicious prosecution is frequently threatened yet rarely fully understood. One of the trickier elements to establish is that the prior action was filed and/or continued without probable cause. Just because you won the prior lawsuit does not necessarily mean that California courts will recognize the prior action lacked probable cause.
"Reasonable Attorney" Test
The test is whether any reasonable attorney would have thought the claim tenable.