Wet Weather Tips for Your Best Friends

As you know, at Pincus Pro Ed, we are huge animal lovers. While we are lucky enough to be based in Los Angeles and away from the worst of winter weather, we wanted to take a moment and share some wet weather tips from Los Angeles Animal Services.

1. Go outside with your dog.
If you normally just let your dog out in the backyard, you may need to actually go with him or her when it’s raining.  Taking your dog for a short walk or stepping out in the yard with them will make your best buddy feel safer and it’s more likely that they will feel comfortable enough to go potty.
2.  Use positive reinforcement and treats.
Just like potty training, bring a few treats when you take your dog outside and reward them after they “go.” Be sure to praise them enthusiastically as well.
3.  Plan ahead.
Watch the weather and take advantage of bringing your dog outside during a lull in the storm. Your pooch will more likely be open to going outside when it’s sprinkling than when it’s pouring rain. Also, think about your walking route. Avoid busy streets where cars will splash through puddles and drench you both and potentially scare your furry family member.
4.  Stay dry.
If your dog doesn’t mind getting dressed up, try purchasing a doggie rain coat and boots for them or grab a large umbrella to shield them from the rain drops. When they get wet, keep a towel on hand so you can quickly dry them off when you return to the house to avoid water and mud on your floors and furniture.
5. Play indoors.
If your dog is used to going outside and running around during the day you’ll want to provide them with indoor activities when it rains for long periods of time. Teach them a new trick, give them a new chew toy, play hide in seek or let them figure out a puzzle feeder or Kong ball that you can pick up at your local pet store.
Some pets do not like rain and some do but regardless, remember companion animals want to be with you! They are safer and dryer inside with you during rain storms, where they can spend their time doing what they do best: being your best friend.
For more from Los Angeles Animal Services you can see their website. They offer adoption, licensing and veterinary services for pets.

The New Pot Com.

As most everyone in California knows, beginning January 1, recreational marijuana is available for purchase by anyone 21 years or older.According to The Recorder, a study from the University of California Agricultural Issues Center at UC Davis, estimated the state’s recreational marijuana sales could reach $5 billion a year, though other studies are estimating $100,000 million for the first year. Either way – it is going to be a huge economic boom. We’re calling it the new Pot Com.

Companies are also prepping for the inevitable regulations that will come with legalized marijuana and marijuana is about to become big business. That comes with large legal departments and legal services provided by attorneys at all sizes of firms and in a variety of legal specialties, as we have said before.

You can get the latest story from The Recorder here.

Also, if you are interested in learning more about the legal aspects of the cannabis industry, be sure to check out our recorded seminar Marijuana Law and Practice 101 held in California in 2017.

Now you can get a college degree in Marijuana Studies

Northern Michigan University is now offering a Marijuana Studies degree. This work intensive course of study also covers other aspects of plant chemistry. According to Brandon Canfield, Associate Chemistry Professor, this program, while it may speak to a certain crowd, involves serious work and commitment on the part of the student to be successful.

And with the exponential growth of the cannabis industry, it’s right on time. We would be surprised if other universities, especially in California and Nevada, didn’t go down this road soon as well.

It’s a serious industry worth teaching and studying – both the science of cultivation and the business and marketing side of it as well. In fact, plants are being patented left and right – just like roses.

Currently, about a dozen students are enrolled in the program. In addition to courses in chemistry, biology, botany and horticulture, students will also study marketing and finance. You can find the full article here.

With changing laws surrounding cannabis this may be a degree perfectly suited to jobs in the future. It was recently reported that 2016 saw a 30% increase in sales from the prior year, growing to an astounding 6.7 billion in North American sales.

And, as more and more states legalize marijuana for both medicinal and legal adult use, the Cannabis industry is the new dot.com – and probably without the bubble.

Currently, at Pincus Pro Ed, we have several programs focused on marijuana law for attorneys who are interested in expanding their practice into this area of law. In June we held our first cannabis focused program in California and it is available as an audio package.

Just this month we held a fantastic program in Chicago, focusing on the recent changes in the state of Illinois (where it is legal for medicinal use only, but adult use legislation has been introduced). You can find more information on the audio package, as well as testimonials, here.

There are updated programs in the works for 2018 as well. Be sure to stay tuned for more information on that.

The What, Why and How of the Final Status Conference

Jill Kopeiken, Speaker at Pincus Professional Education on the Final Status Conference

Our speakers are always providing our attendees with helpful tips for their practice, and Jill Kopeikin of Kopeikin Law, is no exception. Jill is one of those speakers who provides fantastic handouts for every topic on which she speaks and she is an attendee favorite!  Jill has spoken at many of our annual Superior Court Boot Camps and Federal Court Boot Camps.

For one of our Superior Court Boot Camps, Jill provided a great tip-sheet thoroughly explaining the Final Status Conference (FSC).  If you’d like to take a look at the full contents of our most recent 13th California Superior Court Boot Camp, held in 2018, please click on the link just provided or click here to view our 2019 Superior Court program.

So, there are a few things you need to know and think about when it comes to the Final Status Conference.
Written by Jill Kopeikin of Kopeikin Law

  • First, they’re discretionary:
    • There is no California statutory requirement to have a final status conference, merely statutory authorization. See Rule 4.112 Cal. Criminal Rules (“The Court may hold a readiness conference…”, (emphasis added)); see also Rule 3.723 Cal. Rules of Court (“The court on its own motion may order, or a party or parties may request, that an additional case management conference be held at any time…”
  • Given that, what is the purpose? And what are the typical uses? 
    • Judges use the final status conferences (sometimes called an “issues” or “trial readiness” conference) to:
      • Assess the likelihood of settlement
      • Ensure trial readiness
      • Give the parties a chance to raise any issues that may impact the efficient flow of trial
      • Confirm whether a previously reserved jury will be required.  (Judges always try to eliminate a jury trial where possible.)
      • Identify disputed/undisputed facts
      • Discuss exhibits that may be admitted by agreement without laying a foundation, and those that require a foundation
      • Explain the Court’s expectations about readiness and trial schedule
      • Hear and adjudicate pretrial motions. For example, in a “Readiness” conferences held in criminal cases common motions resolved before or at the readiness trial include:  Motions to suppress; Pitchess motions.
    •  Counsel may use the status conference to:
      • Learn more about the Court’s trial practices and preferences.
      • Raise issues that may affect the timing or flow of trial (e.g., explaining that expert witness needing to be called out of order, or identifying preliminary issues to be raised, or notify the Court of a waiver of jury).
      • Seek the adjudication of any pretrial motions that may not have been resolved
      • Discuss equipment needs and handling
      • Discuss exhibit marking, submission and handling at trial, if not already done
      • Try to engage settlement discussions without showing weakness
  • And lastly, what about the timing & procedures?
    • The timing and procedures associated with final pretrial or readiness conferences vary greatly by county, expedited/short or long cause, whether limited or unlimited jurisdiction and criminal versus civil.  So do not assume that what you did in San Francisco Superior will be consistent with what you will do in a new case in Orange County.  It will not.
    • May or may not be standard within a jurisdiction as between judges.
    • Typically held in the last two weeks prior to trial.
    • May or may not be coupled with a court-supervised settlement conference, or these may be held separately.
    • Typically, the exhibits, motions in limine, issues varying trial order or scope, disputes about significant issues that may impact trial scope, order or timing, will be resolved at or before the final pretrial conference.

Jill’s law firm, GCA Law Partners, publishes its own blog with some interesting articles. You can find that blog here.

We hope you’ve found this list helpful and we encourage you to email us, or comment below, if you’d like more tips like these or have any questions.

Want to know more about litigation? You can find upcoming programs and audio packages for past litigation boot camps at these links:

Tequila Shots, Default Interest, and the 9th Circuit’s Reversal of In re Entz-White

Bankruptcy Attorney

The following is a guest post by frequent Pincus Pro Ed speaker on bankruptcy topics, Mette Kurth of Fox Rothschild, LLP.  You can see her blog – The Bottom Line 11 – here

 

Friday night I hosted a Día de los Muertos party.  Naturally, I invited other bankruptcy attorneys. And when you mix lawyers and tequila, things can get pretty crazy.  It wasn’t long before someone was well into an animated story about his Absolutely Worst Day Ever as a Lawyer. Now that its Monday morning and we’ve all sobered up, here’s a recap of his Very Bad Day and the surprise reversal of In re Entz-White that caused it.

Last Week, Debtors Could Avoid Accrued Post-Default Interest in the 9th Circuit by Curing an Underlying Default…

My friend (let’s call him “Roberto”) was representing a debtor that had fallen behind on its loan and was facing insurmountable default interest.  If it could avoid the default interest and other late penalties, it could otherwise cure its defaults, restore its loan to its original terms, and successfully reorganize. “No problem!” Roberto had said. And he took the case on a contingency.

Roberto was right. In re Entz-White Lumber & Supply, Inc., decided back in 1988, held that when a debtor cures a default it may avoid all consequences of the default, including higher post-default interest rates. In other words, it may both repay arrearages at the lower, pre-default interest rate and return to pre-default conditions, including pre-default interest rates, for the remainder of the loan obligation.

Mechanically, it works like this. Section 1123(a)(5)(G) of the Bankruptcy Code requires that a debtor’s plan of reorganization adequately provide for its implementation, including by “curing” any default.  The Bankruptcy Code contains a long list of definitions. Oddly, “cure,” used throughout the Bankruptcy Code, is not one of them. To fill in that gap, the Ninth Circuit adopted the Second Circuit’s definition of cure, e.g., curing a default means taking care of the triggering event, thereby nullifying all of its consequences, including default penalties such as higher interest.

Roberto had relied on Entz-White in charting a path forward for his client. The case was on the verge of confirmation, and he was on the verge of earning his contingency fee.

…. But on Friday, the 9th Circuit Issued a New Opinion Overturning Its Prior Ruling

On Friday, instead of celebrating, Roberto was shooting tequila in my living room and crying into his cerveza.

In In re New Investments, decided earlier that day, the Ninth Circuit overturned its opinion in Entz-White, holding that Bankruptcy Code Section 1123(d) voided Entz-White’s rule that a debtor who proposes to cure a default may avoid a higher, post-default interest rate in the loan agreement.  The Ninth Circuit reversed the bankruptcy court’s underlying order, which had confirmed a Chapter 11 plan based on Entz-White… and simultaneously upended my friend’s pending case as well.

Section 1123(d), which was enacted in 1994, well after Entz-White was decided, states that:

Notwithstanding subsection (a) of this section and sections 506(b), 1129(a)(7), and 1129(b) of this title, if it is proposed in a plan to cure a default the amount necessary to cure the default shall be determined in accordance with the underlying agreement and applicable nonbankruptcy law.

Following is a brief summary of the case and the court’s rationale.

1. Evaluating Applicable (Washington State) Nonbankruptcy Law

In New Investments, the debtor had defaulted on a real estate loan, thereby triggering a default-interest provision. It then filed for bankruptcy protection to avoid foreclosure.  Its plan was to sell its property and then use the sale proceeds to payoff the loan – thus curing the default – at  the pre-default interest rate. The lender objected, pointing to its contractual rights under a promissory note that called for payment of a higher interest rate (equating to approx. $670,000) upon default. The loan agreement was governed by Washington state law. The Ninth Circuit concluded that Washington allows for a higher interest rate upon default when provided for in the loan agreement. See Wash. Rev. Code Ann. Section 61.24.090(1)(a). Thus, it held that cure, as determined under the parties’ contract and applicable state law, required payment of accrued default interest.

2. The Plain Language of Section 1123(d) Drives the Ninth Circuit’s Decision

The Ninth Circuit stated that the plain language of Section 1123(d) compelled its decision. As with all plain-language arguments, there is nothing to analyze here. You can read Section 1123(d) and decide for yourself whether you agree.

3. Surprise! The Legislative History Indicates This Result May Be Unexpected

In case you disagree with the Court’s plain reading of the statute, the Ninth Circuit also looked to the statute’s legislative history and stated it would not help New Investments. Essentially, the Ninth Circuit concluded that Congress had a very particular, and different, purpose in mind when it enacted Section 1123(d) and that it may not have anticipated all of the statute’s consequences. But that, it said, is not a good enough reason to ignore the statute’s plain meaning.

What was Congress trying to do when it enacted Section 1123(d)? The legislative history indicates Congress was primarily concerned with overruling the Supreme Court’s decision in Rake v. Wade, which had stated that, in order to cure a default, a Chapter 13 debtor would have to pay interest on his arrearages even if the underlying loan agreement did not provide for it. Congress was concerned that Rake v. Wade provided an unbargained-for windfall for creditors and enacted Section 1123(d) to “limit the secured creditor to the benefit of the initial bargain.” Congress, the Ninth Circuit acknowledged, may not have anticipated how Section 1123(d) would be interpreted in other contexts.

But the Ninth Circuit felt that its holding, if unanticipated, would not be inconsistent with Congressional intent. In holding the secured creditor to the benefit of its bargain, Congress had said that a cure pursuant to a plan should “put the debtor in the same position as if the default had never occurred.” That, it said, is consistent with holding both parties to the benefit of their bargain and with the concept of cure generally (which it conceeded Section 1123(d) did not alter or attempt to define).

The Ninth Circuit tacitly recognized that its holding will make it more difficult for some debtors to reorganize, undermining the Bankruptcy Code’s goals of offering a fresh start to honest debtors. But it felt that its decision strikes an appropriate balance between the interest of debtors and creditors.

4. The Interpretation of Cure in Section 1123 is Consistent With the Concept of Unimpairment

The Ninth Circuit also stated that its ruling in New Investments would be consistent with the concept of unimpairment under the Bankruptcy Code.  To render a creditor “unimpaired” such that it cannot object to a debtor’s plan, the debtor must cure defaults and may not “otherwise alter the legal, equitable, or contractual rights” of the creditor. One of these rights is post-default interest.

Future Default Interest Differentiated

It is worth noting that the New Investments decision focuses on the treatment of accrued, default interest when a debtor is calculating required cure amounts.  But once default interest or other penalties are paid and a default is therefore cured, the debtor can still return to pre-default conditions as to the remainder of the loan obligation.

Judge Berzon’s Dissenting Opinion

In a dissenting opinion, Judge Marsha S. Berzon wrote that neither Section 1123(d) nor any other provision of the Bankruptcy Code provides a definition of “cure” contrary to the one announced in Entz-White.

As for the majority’s conclusion that Congress displaced Entz-White when it passed Section 1123(d)? Judge Berzon argues at length that this conclusion is not supported by either the plain language of the statute or its legislative history. Instead, Judge Berzon argues that the Court should not read the Bankruptcy Code to erode past bankruptcy practice absent a clear indication that Congress intended such a departure.

My friend Roberto would certainly agree.

 

By: Mette Kurth of Fox Rothschild, LLP