In case you were wondering what weaving references to The Big Lebowski into 35 slides about Kentucky consumer law looks like, well, wonder no more.
PDF of full presentation here: Kentucky Consumer Law Presentation, Lebowski-ized
Located in Louisville, Kentucky, Ben Carter Law provides representation to consumers who are facing foreclosure, who have been defrauded by businesses, injured by defective products, or harmed by the negligence of others.
In case you were wondering what weaving references to The Big Lebowski into 35 slides about Kentucky consumer law looks like, well, wonder no more.
PDF of full presentation here: Kentucky Consumer Law Presentation, Lebowski-ized
Tomorrow, I have the opportunity to talk for an hour about consumer law at the Kentucky Bar Association's New Lawyers Program. In anticipation of the presentation (and so I didn't have to fill my slides with text), I prepared a non-comprehensive outline about many of the common law causes of action, state laws, and federal statues that constitute "Consumer Law".
Below is the outline with some hyperlinks, but because the formatting will never be right in this post, here is a .pdf of the Kentucky Consumer Law Outline. Use it instead. In case you thought it might be, I need to say that this consumer law outline is absolutely not legal advice, dummy.
And, yes, the presentation will have a Lebowski theme.
▾ 1 Kentucky Consumer Protection Act
▾ 1.1 Legislative Intent
• 1.1.1 KRS 367.120 “The General Assembly finds that the public health, welfare and interest require a strong consumer protection program to protect the public interest and the well-being of both the consumer public and the ethical sellers of goods and services…”
• 1.1.2 “The Kentucky legislature created a statute which has the broadest application in order to give Kentucky consumers the broatest possible protection for allegedly illegal acts. In addition, KRS 446.080 requires the statutes of this Commonwealth are to be liberally construed.” Stevens v. Motorist Mutual Ins. Co., Ky. S.W. 2d 819 (1988).
▾ 1.2 Who is protected?
▾ 1.2.1 Statutory Language
• 18.104.22.168 Any person who purchases or leases goods or services primarily for personal, family or household purposes and thereby suffers any ascertainable loss of money or property, real or personal, as a result of the use or employment by another person of a method, act or practice declared unlawful by KRS 367.170, may bring an action under the Rules of Civil Procedure in the Circuit Court in which the seller or lessor resides or has his principal place of business or is doing business, or in the Circuit Court in which the purchaser or lessee of goods or services resides, or where the transaction in question occurred, to recover actual damages. The court may, in its discretion, award actual damages and may provide such equitable relief as it deems necessary or proper. Nothing in this subsection shall be construed to limit a person's right to seek punitive damages where appropriate. Ky. Rev. Stat. Ann. § 367.220
▾ 1.3 Who’s Covered in Practice
▾ 1.3.1 A person (not business) who “purchases or leases goods or services primarily for personal family, or household purposes”
• 22.214.171.124 But the absence of a finding of a valid contract is not fatal to a claim for unfair trade practices under the KCPA as it would be to a breach of contract claim. Nothing in the KCPA—particularly KRS 367.170 and KRS 367.220—explicitly requires that a binding contract be reached for a purchaser damaged by unlawful trade practices to have a private right of action. Rather, because Piles and Warner qualified as purchasers under the KCPA, they were entitled to sue for any damages resulting from unfair trade practices by Sonny Bishop Cars under KRS 367.220. Craig & Bishop, Inc. v. Piles, 247 S.W.3d 897, 903 (Ky. 2008);
▾ 1.3.2 Renters
• 126.96.36.199 In both matters the tenant asserts that the landlord's failure to make needed repairs and his violations of the local housing code constitute unfair, false, misleading or deceptive acts. As a violation of a housing code does not create a cause of action in favor of the tenant, the failure of the landlord to comply with a housing code cannot be deceptive in the absence of an express covenant or agreement that the landlord would comply with such housing code. Likewise, in the absence of a duty or obligation *519 to make repairs to a rental unit, the failure to make such repairs cannot be construed to constitute an unfair, false, misleading or deceptive act. Miles v. Shauntee, 664 S.W.2d 512, 518-19 (Ky. 1983)
▾ 1.3.3 Homebuyers/Homeowners
• 188.8.131.52 “That brings us to the violation of the Kentucky Consumer Protection Act, KRS 367.110, et seq. The jury did make a finding of a breach, but with zero damages. We need not get into a discussion as to whether the verdict is an oxymoron because we do not believe that the Kentucky Consumer Protection Act applies to real estate transactions by an individual homeowner.” Craig v. Keene, 32 S.W.3d 90, 91 (Ky. Ct. App. 2000)
• 184.108.40.206 Summary: Buyers of “as is” mobile home can still maintain causes of action for fraudulent misrepresentation and KCPA. Elendt v. Green Tree Servicing, LLC (Ky.App. 2014) 443 S.W.3d 612.
▾ 1.3.4 People Seeking the Extension of Credit
• 220.127.116.11 A federal court has interpreted case law and the KCPA to determine that the sale of credit, so long as it was purchased for personal use, is covered by KCPA. Stafford v. Cross Co. Bank, 262 F. Supp. 2d 776, 792-3 (W.D.Ky. 2003).
▾ 1.3.5 Purchasers of Insurance Policies
• 18.104.22.168 “It is the holding of this Court that the Kentucky Consumer Protection Act provides a homeowner with a remedy against the conduct of their own insurance company pursuant to KRS 367.220(1) and KRS 367.170.” Stevens v. Motorists Mut. Ins. Co., 759 S.W.2d 819, 821-22 (Ky. 1988)
▾ 1.4 What are they protected from?
▾ 1.4.1 Statutory Language
• 22.214.171.124 KRS 367.170: (1) Unfair, false, misleading, or deceptive acts or practices in the conduct of any trade or commerce are hereby declared unlawful.
(2) For the purposes of this section, unfair shall be construed to mean unconscionable.
• 126.96.36.199 “The terms ‘false, misleading and deceptive’ has sufficient meaning to be understood by a reasonably prudent person of common intelligence. Therefore, when the evidence creates an issue of fact, that any particular action is unfair, false, misleading or deceptive it is to be decided by a jury.” Stevens v. Motorist Mutual Ins. Co., 759 S.W.2d 819, 820 (Ky. 1988).
▾ 1.5 What are they not protected from?
▾ 1.5.1 Not covered: incompetence
• 188.8.131.52 “While there can be no doubt Gamble was initially buried in the wrong plot in contravention of the burial contract, ‘[n]ot every failure to perform a contract is sufficient to trigger application of the Consumer Protection Act. The statute requires some evidence of “unfair, false, misleading or deceptive acts” and does not apply to simple incompetent performance of contractual duties unless some element of intentional or grossly negligent conduct is also present.’” Keaton v. G.C. Williams Funeral Home, Inc., 436 S.W.3d 538, 546 (Ky. Ct. App. 2013) quoting Capitol Cadillac Olds, Inc. v. Roberts, 813 S.W.2d 287, 291 (Ky.1991).
▾ 1.5.2 Not covered: “mere breach of promise”
• 184.108.40.206 A mere breach of promise does not constitute an unfair, false, misleading or deceptive act. The facts in Miles v. Shauntee indicate that the landlord made assurances of repair which were never significantly honored or fulfilled. This Court cannot hold as a matter of law that such assurances constitute unfair, false, misleading or deceptive acts declared unlawful under the Consumer Protection Act. Miles v. Shauntee, 664 S.W.2d 512, 519 (Ky. 1983).
▾ 220.127.116.11 But, breach of promise to do something in the future is actionable when there is no present intent to perform that future act.
• 18.104.22.168.1 An accepted rule is, a misrepresentation, to be actional, must concern an existing or past fact, and not a future promise, prophecy, or opinion of a future event, unless declarant falsely represents his opinion of a future happening.” “One may commit ‘fraud in the inducement’ by making representations as to his future intentions when in fact he knew at the time the representations were made he had no intention of carrying them out.”
PCR Contractors, Inc. v. Daniel, 354 S.W.3d 610, 614 (Ky. App. 2011) quoting Bear, Inc. v. Smith, 303 S.W.3d 137, 142, 614 (Ky. App. 2010).
▾ 1.6 Damages
▾ 1.6.1 Compensatory Damages
▾ 22.214.171.124 Logical and natural consequences
• 126.96.36.199.1 Diminished value
• 188.8.131.52.2 Higher repair costs
• 184.108.40.206.3 Time missed from work dealing with issue
▾ 220.127.116.11.4 Inconvenience
• 18.104.22.168.4.1 Clearly, the inconvenience award was not duplicative of the loss of use award. No loss of use award was permitted for Piles.21 Thus, without an inconvenience award to her, Piles would stand to recover no compensatory damages at all, despite testimony that she had to miss work and suffered difficulties at her job caused by constant telephoning and trips to the dealership. Craig & Bishop, Inc. v. Piles, 247 S.W.3d 897, 907 (Ky. 2008);
▾ 22.214.171.124 Mental and emotional suffering
▾ 126.96.36.199.1 No case that says damages for mental and emotional suffering are available under KCPA. No Kentucky case says they’re not.
• 188.8.131.52.1.1 “Defendants also assert that Plaintiffs are not entitled to mental suffering or emotional distress damages. Kentucky courts have been clear that these types of damages are not recoverable under a contract-type cause of action. See, e.g., Combs v. Southern Bell Tel. & Tel. Co., 38 S.W.2d 3, 5, 238 Ky. 341, 345-46 (Ky.1931). Plaintiffs cite no persuasive authority to the contrary. No Kentucky court has concluded that the KCPA entitles plaintiffs to mental suffering or emotional distress damages. This Court declines to do so now.” Peacock v. Damon Corp., 458 F. Supp. 2d 411, 420 (W.D. Ky. 2006);
▾ 1.6.2 Rescission (equitable relief)
• KRS 367.220 explicitly allows the Court the power to “in its discretion, award actual damages and may provide such equitable relief as it deems necessary or proper.”
▾ 1.6.3 Punitive Damages
• 184.108.40.206 KRS 367.220(1): Nothing in this subsection shall be construed to limit a person’s right to seek punitive damages where appropriate.
▾ 220.127.116.11 Because actual damages will likely be relatively small, punitive damages in consumer cases can be larger than punitive damages in other kinds of cases.
• 18.104.22.168.1 “It appears that the amount of the punitive damages award was rationally imposed by the jury to serve the deterrent effect for which punitive damages were designed, especially in consumer protection cases where the economic harm is relatively small.” Craig & Bishop, Inc. v. Piles, 247 S.W.3d 897, 906–07 (2008);
• 22.214.171.124.2 The United States Supreme Court has provided three factors trial courts may consider:
1) the degree of reprehensibility of the conduct;
2) the disparity between the actual harm and the punitive damages, generally expressed as a ratio; and
3) a comparison of penalties that could be imposed for similar conduct in similar analogous cases.
Paraphrasing BMW v. Gore, 116 S.Ct. 1589, 1598–99 (1996.)
Of these three factors, the first—the degree of reprehensibility of the conduct—is the most important. See State Farm Mutual Automobile Insurance Co. v. Campbell, 538 U.S. 408, 419 (2003)
▾ 1.6.4 Attorney’s fees should be included in the damages awarded when determining the reasonableness of the ratio between actual harm and punitive damages.
• 126.96.36.199 In Willow Inn, Inc. v. Public Service Mut. Ins. Co., the Third Circuit Court of Appeals included the attorney’s fees into the ratio calculus of an insurance bad faith case (called a Section 8371 action in Pennsylvania). It explained, “Section 8371's attorney fees and costs provisions vindicate the statute's policy by enabling plaintiffs such as Willow Inn to bring § 8371 actions alleging bad faith delays to secure counsel on a contingency fee. Moreover, “one function of punitive-damages awards is to relieve the pressures on an overloaded system of criminal justice by providing a civil alternative to criminal prosecution of minor crimes,” Mathias v. Accor Economy Lodging, Inc., 347 F.3d 672, 676 (7th Cir.2003), and the structure of § 8371 enlists counsel to perform a filtering function akin to prosecutorial discretion, because rational attorneys will refuse to work on a contingent fee arrangement when their investigation reveals the bad faith allegations of prospective clients to be meritless.” Willow Inn, Inc. v. Pub. Serv. Mut. Ins. Co., 399 F.3d 224, 236 (3d Cir. 2005).
• 188.8.131.52 The Third Circuit noted that its decision to include attorney’s fees in the ratio analysis “is supported in the case law” and explained that a recent Pennsylvania state court decision also included the attorney’s fees incurred in a bad faith claim in the ratio analysis. This position has also been adopted by the 11th Circuit in Action Marine, Inc. v. Cont’l Carbon Inc., 481 F.3d 1302 (11th Cir. 2007) and Illinois state courts in Kirkpatrick v. Strosberg, 894 N.E.2d 781 (Ill. App. Ct. 2008).
▾ 1.6.5 Attorney’s Fees
• 184.108.40.206 KRS 367.220(3) In any action brought by a person under this section, the court may award, to the prevailing party, in addition to the relief provided in this section, reasonable attorney's fees and costs.
• 220.127.116.11 The seminal case on the award of fees pursuant to the Kentucky Consumer Protection Act is Alexander v. S&M Motors, Inc., 28 S.W.3d 303 (Ky. 2000). That case holds that the award of fees is in the sound discretion of the trial court. In Alexander, the Kentucky Supreme Court explained that permitting the additional recovery of attorney’s fees in consumer protection cases serves two purposes. First, it is “intended to compensate the prevailing party for the expense of bringing an action under the statute.” The Court continued, “[a] further aim is to provide attorneys with incentive for representing litigants who assert claims which serve an ultimate public purpose (i.e. a deterrent to conduct resulting in unfair trade practices which perpetrate fraud and deception upon the public.)” Alexander at 305.;
▾ 18.104.22.168 Attorney’s fees are determined by using the “lodestar method”
• 22.214.171.124.1 In Hensley v. Eckerhart, 461 U.S. 424, 429 (1983), the United States Supreme Court noted that “the most useful starting point for determining the amount of a reasonable fee is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate.”
• 126.96.36.199.2 You must keep your time contemporaneously. I suggest using a time-tracking service like Harvest (https://www.getharvest.com/) to capture and track time.
▾ 2 Kentucky Lemon Law (KRS 367.840, et seq.)
▾ 2.1 Purpose
• 2.1.1 Kentucky’s “Lemon Law” is intended to accomplish three goals: (1) To protect consumers who buy or lease new motor vehicles that do not conform to applicable warranties by holding manufacturers accountable for certain nonconformities; (2) To limit the number of attempts and the amount of times that a manufacturer or its agents shall have to cure such nonconformities; and (3) To require manufacturers to provide, in as expeditious a manner as possible, a refund, not to exceed the amount in KRS 367.842, or replacement vehicle that is acceptable to the aggrieved consumer when the manufacturer or its agents fail to cure any nonconformity within the specified limits.
Ky. Rev. Stat. Ann. § 367.840
• 2.1.2 Note: the Magnuson-Moss Warranty Act (15 USC § 2301, et seq.) may also offer remedies for breach of warranty issues arising from the sale of a new vehicle.
▾ 2.2 Application
• 2.2.1 Kentucky’s Lemon Law applies to new motor vehicles and not to: (a) Any vehicle substantially altered after its initial sale from a dealer to an individual; (b) Motor homes; (c) Motorcycles; (d) Mopeds; (e) Farm tractors and other machines used in the production, harvesting, and care of farm products; or (f) Vehicles which have more than two (2) axles.
Ky. Rev. Stat. Ann. § 367.841
▾ 2.3 Process
▾ 2.3.1 KRS 367.842 outlines the process and rights of consumers afflicted with a “lemon”.
▾ 188.8.131.52 Consumers must give the manufacturer a “reasonable number” of attempts to repair any nonconformity.
• 184.108.40.206.1 A presumption that the consumer has given the manufacturer a reasonable opportunity to repair the vehicle if he or she has a) returned the vehicle for repair of the same nonconformity 4 times or b) lost use of the vehicle for the nonconformity for more than 30 days.
• 220.127.116.11 The nonconformity must “sustantially impact” the “use, value, or safety” of the motor vehicle”.
• 18.104.22.168 The consumer must report the failure to repair the nonconformity in writing to the manufacturer in the first 12 months or 12,000 miles of use, whichever comes sooner.
• 2.3.2 KRS 367.842(4) requires consumers to particpate in an informal dispute resolution process before filing suit
▾ 2.3.3 Damages
▾ 22.214.171.124 The consumer can choose between replacement of the vehicle or refunding the money he or she paid for the vehicle.
• 126.96.36.199.1 Under KRS 367.842(2), “the manufacturer, at the option of the buyer, shall replace the motor vehicle with a comparable motor vehicle, or accept return of the vehicle from the buyer and refund to the buyer the full purchase price. The full purchase price shall include the amount paid for the motor vehicle, finance charge, all sales tax, license fee, registration fee, and any similar governmental charges plus all collateral charges, less a reasonable allowance for the buyer's use of the vehicle.
• 188.8.131.52 A court may award reasonable attorney's fees to a prevailing plaintiff. KRS 367.842(9)
▾ 3 Kentucky Repossessions
• 3.1 There is an entire book published by the National Consumer Law Center on protecting consumers from repossession, prosecuting wrongful repossession, and helping consumers recover from repossessions.
▾ 3.2 Reposssessions in Ketucky are governed by KRS 355.9-601, et seq.
• 3.2.1 Repossessions must be 1) after default and must not 2) breach the peace. KRS 355.9-609
• 3.2.2 The repossessing business can resell the collateral but only after providing notice to the consumer KRS 355.9-610 and 9-611.
• 3.2.3 Remedies for violations of UCC’s repossession provisions are located at KRS 355.9-625.
▾ 4 Usury
▾ 4.1 Legal rate of interest
▾ 4.1.1 KRS 360.010 states that the legal rate of interest is 8%
• 184.108.40.206 On loans of $15,000 or less, the parties can contract for up to 19%, and
• 220.127.116.11 On loans greater than $15,000, the parties can contract for whatever interest rate they want.
▾ 4.1.2 Damages under KRS 360.020
• 18.104.22.168 The taking, receiving, reserving, or charging a rate of interest greater than is allowed by KRS 360.010, when knowingly done, shall be deemed a forfeiture of the entire interest which the note, bill, or other evidence of debt carries with it, or which has been agreed to be paid thereon. In case the greater rate of interest has been paid, the person by whom it has been paid, or his legal representatives, may recover, in an action in the nature of an action of debt, twice the amount of the interest thus paid from the creditors taking or receiving the same: provided, that such action is commenced within two (2) years from the time the usurious transaction occurred.
• 4.1.3 Often, businesses effectively charge interest greater than the legal or contractual rate by padding the deal with additional charges and fees. You must acquaint yourself with the case law on these statutes to determine whether certain charges are “interest” and therefore usurious.
▾ 5 Federal Laws
▾ 5.1 Fair Debt Collection Practices Act (FDCPA)
• 5.1.1 Protects people from abusive debt collection practices
• 5.1.2 15 USC 41 § 1692, et seq. http://www.law.cornell.edu/uscode/text/15/chapter-41/subchapter-V
• 5.1.3 Prohibits false or misleading representations, unfair practices, harrassment or abuse
• 5.1.4 Again, the National Consumer Law Center publishes an entire book on this subject and some practitioners focus exclusively on prosecuting these claims.
• 5.1.5 Report on Debt Collection from the Center for Responsible Lending: http://www.responsiblelending.org/state-of-lending/reports/11-Debt-Collection.pdf
▾ 5.1.6 Damages
• 22.214.171.124 § 1692k allows people to recover their actual damages suffered as a result of the violation, up to $1,000 in statutory damages, and attorney’s fees
▾ 5.1.7 This area of law is extremely rewarding and challenging. Abuse is rampant and the issues that arise are novel and nuanced.
• 126.96.36.199 Conway v. Portfolio Recovery Associates, LLC, 13 F.Supp.3d 711 held that a person stated a cause of action for FDCPA violations when a debt collector that received payments in Virginia sued on the debt in Kentucky. Conway’s attorney argued that the debt collector violated the FDCPA because it sued beyond the statute of limitations of the debt and the Court held that the SOL that applied was Virginia’s (3 years), not Kentucky’s (5 or 15 years).
▾ 5.2 Fair Credit Reporting Act (FCRA) 15 USC § 1681 et seq.
• 5.2.1 Provides a mechanism for consumers to dispute inaccurate information on their credit reports and imposes penalties on credit reporting agencies and furnishers of credit information for failure to correct inaccuracies.
• 5.2.2 FTC’s Summary of Consumer Rights under FCRA: https://www.consumer.ftc.gov/articles/pdf-0096-fair-credit-reporting-act.pdf
▾ 5.2.3 Damages (§ 1681(n))
• 188.8.131.52 Actual damages in any amount or statutory damages not to exceed $1,000
• 184.108.40.206 Punitive damages
• 220.127.116.11 reasonable attorney’s fees
▾ 5.3 Truth in Lending Act (TILA) 15 USC ch 41 § 1601 et seq.
• 5.3.1 Standardizes how fees and interest are calculated in consumer finance transactions
• 5.3.2 Creates environment in which consumers can comparison shop by requring businesses to calculate the “true cost” of the loan and the “real” interest rate after taking into account fees, charges, and other costs of credit
• 5.3.3 TILA’s specific requirements are in the awesome-sounding “Regulation Z”: 12 CFR 226
▾ 5.4 Real Estate Settlement and Procedures Act (RESPA)
• 5.4.1 The CFPB’s new Regulation X provides a private cause of action for violations of many of the regulations governing mortgage servicers. Read more here: http://www.consumerfinance.gov/regulations/2013-real-estate-settlement-procedures-act-regulation-x-and-truth-in-lending-act-regulation-z-mortgage-servicing-final-rules/
▾ 5.5 Telephone Consumer Protection Act (TCPA): 47 USC § 227
• 5.5.1 The Telephone Consumer Protection Act prohibits obnoxious and costly use of telephones. It limits the circumstances under which businesses can contact consumers and places meaningful restrictions on telemarketers and the use of automated dialing systems (“autodialers” or “robodialers”), text messages, voice recordings, and fax machines.
▾ 5.5.2 Damages
• 18.104.22.168 Actual damages
• 22.214.171.124 Statutory damages up to $1,500 per violation
• 126.96.36.199 No attorney’s fees under the TCPA
▾ 6 Other Causes of Action
▾ 6.1 URLTA (Uniform Residential Landlord Tenant Act) KRS 383.505
• 6.1.1 KRS 383.500 requires local governments to adopt URLTA in its entirety and without amendment. As of 2009, the following jurisditions had adopted URLTA’s provisions: Barbourville, Bellevue, Bromley, Covington, Dayton, Florence, Lexington-Fayette County, Georgetown, Louisville-Jefferson County, Ludlow, Melbourne, Newport, Oldham County, Pulaski County, Shelbyville, Silver Grove, Southgate, Taylor Mill and Woodlaw.
▾ 6.1.2 Remedies include a private right of action
• 188.8.131.52 KRS 383.520: (1) The remedies provided by KRS 383.505 to 383.715 shall be so administered that an aggrieved party may recover appropriate damages. The aggrieved party has a duty to mitigate damages. (2) Any right or obligation declared by KRS 383.505 to 383.715 is enforceable by action unless the provision declaring it specifies a different and limited effect.
• 184.108.40.206 No decision on whether attorney’s fees are “appropriate damages” under URLTA.
▾ 6.2 Equitable Estoppel: Fluke Corporation v. LeMaster, 306 SW 3d 55 (Ky. 2010).
• 6.2.1 Under Kentucky law, equitable estoppel requires both a material misrepresentation by one party and reliance by the other party:
The essential elements of equitable estoppel are[:] (1) conduct which amounts to a false representation or concealment of material facts, or, at least, which is calculated to convey the impression that the facts are otherwise than, and inconsistent with, those which the party subsequently attempts to assert; (2) the intention, or at least the expectation, that such conduct shall be acted upon by, or influence, the other party or other persons; and (3) knowledge, actual or constructive, of the real facts. And, broadly speaking, as related to the party claiming the estoppel, the essential elements are (1) lack of knowledge and of the means of knowledge of the truth as to the facts in question; (2) reliance, in good faith, upon the conduct or statements of the party to be estopped; and (3) action or inaction based thereon of such a character as to change the position or status of the party claiming the estoppel, to his injury, detriment, or prejudice.
▾ 6.3 IIED
• 6.3.1 In certain circumstances, unscrupulous businesses’ actions will rise to the level of Intentional Infliction of Emotional Distress.
• 6.3.2 Our Commonwealth first adopted the tort of intentional infliction of mental distress in the case of Craft v. Rice, Ky., 671 S.W.2d 247 (1984). In Craft, we adopted Restatement (Second) of Torts, section 46, and recognized the elements of proof necessary for this new tort: 1. The wrongdoer's conduct must be intentional or reckless; 2. The conduct must be outrageous and intolerable in that it offends against the generally accepted standards of decency and morality; 3. There must be a causal connection between the wrongdoer's conduct and the emotional distress; and 4. The emotional distress must be severe. Kroger Co. v. Willgruber, 920 S.W.2d 61, 65 (Ky. 1996)
▾ 6.4 Breach of Contract
• 6.4.1 Of course, in many cases, not only will you have KCPA violations and tortious activity, you will also have breach of contract claims.
▾ 6.5 Insurance Bad Faith
• 6.5.1 Kentucky’s Unfair Claims Settlement Practices Act (KRS 304.12-230) supplements common law “bad faith” administration of insurance claims.
• 6.5.2 It prohibits specific activities that are unfortunately common during the process of making a claim for coverage including, but not limited to, “failing to acknowledge and act reasonably promptly upon communications”, failing to investigate claims, “failing to affirm or deny coverage of claims within a reasonable time after proof of loss statements have been completed”, and “not attempting in good faith to effectuate prompt, fair, equitable settlements of claims in which liability has become reasonably clear.” Reading the entire statute and surrounding jurisprudence is, of course, necessary.
▾ 6.6 Fraud
▾ 6.6.1 Elements
• 220.127.116.11 In a Kentucky action for fraud, the party claiming harm must establish six elements of fraud by clear and convincing evidence as follows: a) material representation b) which is false c) known to be false or made recklessly d) made with inducement to be acted upon e) acted in reliance thereon and f) causing injury. Wahba v. Don Corlett Motors, Inc., Ky.App., 573 S.W.2d 357, 359 (1978). United Parcel Serv. Co. v. Rickert, 996 S.W.2d 464, 468 (Ky. 1999)
▾ 6.6.2 Promises of future performance
• 18.104.22.168 An accepted rule is, a misrepresentation, to be actional, must concern an existing or past fact, and not a future promise, prophecy, or opinion of a future event, unless declarant falsely represents his opinion of a future happening.” “One may commit ‘fraud in the inducement’ by making representations as to his future intentions when in fact he knew at the time the representations were made he had no intention of carrying them out.”
PCR Contractors, Inc. v. Daniel, 354 S.W.3d 610, 614 (Ky. App. 2011) quoting Bear, Inc. v. Smith, 303 S.W.3d 137, 142, 614 (Ky. App. 2010).
▾ 6.6.3 Fraudulent Omission
• 22.214.171.124 This subset of “fraud” is a common cause of action in consumer law practice.
• 126.96.36.199 To prevail on a claim of fraudulent omission, a plaintiff must prove: (a) a duty to disclose a material fact; (b) a failure to disclose a material fact; and (c) that the failure to disclose a material fact induced the plaintiff to act and, as a consequence, (d) to suffer actual damages. Rivermont Inn, Inc. v. Bass Hotels & Resorts, Inc., 113 S.W.3d 636, 641 (Ky.App.2003). A caveat to the necessary elements under either claim is that “mere silence does not constitute fraud where it relates to facts open to common observation or discoverable by the exercise of ordinary diligence, or where means of information are as accessible to one party as to the other.” Bryant v. Troutman, 287 S.W.2d 918, 920–921 (Ky.1956). Waldridge v. Homeservices of Kentucky, Inc., 384 S.W.3d 165, 171 (Ky. Ct. App. 2011).;
• 188.8.131.52 A duty to disclose facts is created only where a confidential or fiduciary relationship between the parties exists, or when a statute imposes such a duty, or when a defendant has partially disclosed material facts to the plaintiff but created the impression of full disclosure. Dennis v. Thomson, Ky., 240 Ky. 727, 43 S.W.2d 18 (1931). Rivermont Inn, Inc. v. Bass Hotels & Resorts, Inc., 113 S.W.3d 636, 641 (Ky. Ct. App. 2003);
▾ 184.108.40.206 Beyond these three situations cited in Rivermont in which a duty arises, Kentucky courts have found other circumstances in which a party may commit fraudulent concealment:
• 220.127.116.11.1 A duty to disclose may arise from a fiduciary relationship, from a partial disclosure of information, or from particular circumstances such as where one party to a contract has superior knowledge and is relied upon to disclose same. Smith v. Gen. Motors Corp., 979 S.W.2d 127, 129 (Ky. Ct. App. 1998)
• 18.104.22.168.2 We may readily agree with the appellants that mere silence with respect to something related to a transaction is not necessarily misrepresentation and does not itself constitute fraud. However, it is otherwise when the circumstances surrounding a transaction impose a duty or obligation upon one of the parties to disclose all the material facts known to him and not known to the other party. The suppression or concealment of the truth under such circumstances may constitute a means of committing a fraud as well as misrepresentation openly made. Since the beginning of our jurisprudence, the principle has been consistently adhered to that the concealment by a seller of a material defect in property being sold, or the suppression by him of the true conditions respecting the property, so as to withhold from the buyer information he is entitled to, violates good faith and constitutes deception which may relieve the buyer from an obligation or may permit him to maintain an action for damages or to vacate the transaction. Hall v. Carter, 324 S.W.2d 410, 412 (Ky. 1959)
▾ 6.7 Negligent Misrepresentation
• 6.7.1 A majority of jurisdictions have adopted Restatement (Second) of Torts § 552, which outlines the elements of negligent misrepresentation as follows:(1) One who, in the course of his business, profession or employment, or in any other transaction in which he has a pecuniary interest, supplies false information for the guidance of others in their business transactions, is subject to liability for pecuniary loss caused to them by their justifiable reliance upon the information, if he fails to exercise reasonable care or competence in obtaining or communicating the information. (2) Except as stated in Subsection (3), the liability stated in Subsection (1) is limited to loss suffered (a) by the person or one of a limited group of persons for whose benefit and guidance he intends to supply the information or knows that the recipient intends to supply it; and (b) through reliance upon it in a transaction that he intends the information to influence or knows that the recipient so intends or in a substantially similar transaction. Presnell Const. Managers, Inc. v. EH Const., LLC, 134 S.W.3d 575, 580 (Ky. 2004)
▾ 7 Foreclosure Defense
• 7.1 See outline that follows
▾ 7.2 Foreclosure Defense includes helping your client rigorously pursue all loss mitigation options
The New York Times wrote a good article a couple of weeks ago on a phenomenon I’m seeing more and more in my car fraud practice: used car dealers are now installing GPS and SID (Starter Interrupt Devices) on the cars they sell. While everyone knows what a GPS does, these GPS devices don’t sit on the dashes of cars and help drivers navigate to their destinations. Instead, they allow dealers and finance companies to track the whereabouts of cars for repossession.
Meanwhile, the Starter Interrupt Device is less well-known and even more dangerous. It does exactly what it says it does: it allows a dealer or finance company to interrupt (i.e. prevent) the car from starting. Dealers and finance companies can “flip the switch” on the SID remotely. So, they never have to leave their office (and sometimes can deploy it from a smartphone) and with the flip of a digital switch can make a vehicle stop working. (If properly installed, the SID will not stop a vehicle that is in motion, but that does not fix the safety concerns of being stranded.)
Some dealers disclose the existence of these devices to consumers, some don’t. Those who do disclose their use of the device often try to explain that these devices “help locate the vehicle if it is stolen”. While that may be true, the actual purposes are to a) locate the vehicle for repossession and b) incentivize the consumer to make payments by preventing the consumer from using the vehicle if he or she misses a payment.
The used car industry’s expanding use of these devices raises many potential legal issues that have yet to be litigated in Kentucky. A leading attorney advising the used car industry has described both 1) failing to disclose a GPS or SID and 2) charging consumers for the devices as among the “Ten ‘Worst Practices’ for Dealers”. Failing to disclose the existence of a GPS and/or SID on a new or used vehicle may be a violation of the Motor Vehicle Retail Installment Sales Act.
Another area ripe for abuse is in the repossession of a vehicle by use of a Starter Interrupt Device. Aside from the safety issues raised by someone crippling a vehicle remotely, a dealer’s use of a Starter Interrupt Device can potentially violate, among other laws, the Uniform Commercial Code and the Kentucky Consumer Protection Act.
If you discover that a car dealer sold you a vehicle equipped with a GPS or SID unit without disclosing it to you, you need to contact an attorney to explore your legal rights. You can find a consumer attorney in your state at the National Association of Consumer Advocate’s website.
Last night, I had a chance to watch John Oliver's great takedown of one of America's worst industries: the payday loan industry.
The whole thing is great, but I seriously want a Kickstarter to buy TV time for Sarah Silverman's ad at the end of this clip about the best options for people considering taking out a payday loan.
In Kentucky, payday loan companies charge an average annual interest rate of 391%. The Kentucky Coalition for Responsible Lending is trying to pass legislation that would cap that interest rate at the still-exorbitant price of 36%. I applied to become a member of KCRL today. You should, too.
If you are struggling with repaying payday loans or other debts, please contact an attorney to get advice on the best way to gain control over your financial life.
I spent Tuesday, Wednesday, and Thursday of this week trying a car fraud case in Jefferson Circuit Court. It was my first trial as a lead attorney and the first case Ben Carter Law has taken to trial.
My client, Renay Seals, alleged that the Defendant, Mak Cars, Inc dba Unique Motorsports (Mak Cars also does business in Louisville as Hot Deals on Wheels Used Cars) sold her a car with more than 245,000 miles on it after assuring her that a) the car only had 54,000 additional miles on it beyond the 21,420 on the odometer and b) the car was eligible for a 24 month/24,000 mile warranty.
The jury found that Mak Cars, Inc violated the Kentucky Consumer Protection Act and ordered the Defendant to pay Renay:
The jury also found that my client was 10% responsible for what happened, which reduces the amount of the judgment for the purchase price and mental suffering by the same proportion.
There are three great things about this verdict. (Okay, there are a lot more than three, but I want to talk about three here.)
First, Renay is from Louisiana. The only experience she had with Louisville, Kentucky was coming here to look at a car she thought had 21,240 miles on it and getting hosed. With its verdict, the jury said, "What happened to you is not acceptable. It's not how we treat people here." Renay and her son left Louisville yesterday knowing that Louisville, Kentucky has good people in it.
Second, I had a chance to talk with some jurors after the case. One of them said, "Do you know why we set punitive damages at $245,000?" We had set the maximum amount we could recover at $250,000, so I told her I just thought they didn't want to give the max.
"No, we set it at $245,000 because that was how many miles the car had on it. We thought that would be an appropriate symbol to deter other dealers from doing something like this."
AWESOME. This shows the jury was thinking even harder than I was about this case. Which I didn't think was possible until it was.
Third, another juror told me that the jury wanted to write on the verdict that Renay had to spend a little bit of the money it ordered Defendant to pay her to return to Louisville and attend Derby next year. This jury was truly appalled that someone from out of town was treated so badly by a Louisville business.
Yesterday was a great day for my client: the jury validated her 18-month fight both out and then in court with a company that had done her wrong. It was a great day for me: it was a scary thing to go to trial on my own for the first time. And, I hope, the jury's verdict will help other Kentucky consumers and their attorneys get fair compensation for wrongs done to them.
In many ways, equipping a small law office has never been easier or less expensive. However, if you do it wrong, you can definitely end up spending a ton of money and inviting a bunch of hassle and disappointment into a job with plenty of hassle and frustration in it already.
In this post, I've tried to compile the best equipment for law offices. It is difficult to discuss law office equipment without some tangential considerations to the software a law office will use to get its work done, but—as far as possible—I've tried to separate the two and limit this post to actual products with protons and neutrons rather than the 0s and 1s of software. (I am aware that protons, neutrons, and electrons also create the 0s and 1s.)
Here are the assumptions I've made in making these recommendations:
That is to say, these are recommendations for solo and small firms and those lawyers in government or big firms with enough authority to demand a certain amount of autonomy in how they get their work done.
Annie O'Connell and I discuss many of the nuances of these equipment decisions in episodes of our award-winning (not really) podcast, Let's Start a Law Firm. We also discuss some of the software that we use with this equipment.
If you like this post, please share it with other lawyers. If you really like it, know that I get a small kickback on purchases you make on Amazon by following the links in the post. One of these days, those kickbacks will be large enough for me to take Annie out to dinner.
Use what works for you. For me, the portability and continued speed of my mid-2011 Macbook Air is all I need. As a nerd, I would love an excuse to upgrade to the most recent iteration of the Air, but my current computer is, alas, perfect.
You must back up your data. You must have at least one on-site backup and one off-site backup of your data at all times. For Mac users, a Time Capsule is an easy on-site backup solution. For everyone, BackBlaze is a great, affordable solution to back up your data in the cloud.
One compelling option for file-sharing and off-site backup is File Transporter. Like your own, private Dropbox.
Again, this is one of those areas that is too personal to make a definitive recommendation. I have the luxury of renting an office that came with a desk I use for client meetings and enough room in the corner for my standing desk from Geek Desk. (Obviously, a standing desk is not strictly necessary to equip a law office.)
Regardless of what kind of desk and chair (if applicable) you use, make sure you're set up to do your work in ergonomically correct positions. Be kind to yourself.
Speaking of ergonomics, I just recently purchased my first ergonomic keyboard: the Microsoft Sculpt. It is great and, after minor tweaks to the key commands, works well with my Mac.
Another "not strictly necessary" expense is the totally-worth-it expense of an external monitor. I have used both the Apple 27" external monitor and a much-more-affordable Dell 27" monitor. I can definitely notice a difference between the two and can get more application windows on my Apple monitor, but whether it's worth 3x the price is a personal decision.
Here, you need to decide whether you need to print color. Personally, I do not. I have been solo for 18 months now and have not yet needed to print in color once. And, I think there are fewer things more annoying than when I accidentally print something in color when I just needed a grayscale version of it.
This is why I had my logo designed by Two State Champs to be black-and-white to avoid needing to print color (and avoid the expense and hassle of having to have letterhead and envelopes printed by an outside print shop). I use the Brother HL-5470DW.
As frustrating as accidentally printing something in color is, I find accidentally printing a brief onto twenty envelopes (or, conversely, printing an envelope onto 8.5" x 11" paper) even more frustrating. I know: it is easy to pick which tray you want to print something from. You are smart and I'm not. Despite my 7 years of higher education, I make this mistake all the time. This is why I do not print envelopes at all. There is literally never anything but letter-sized paper in my printer so that I can't mistakenly print a 20-page case onto 20 envelopes.
To print envelopes, I use the Dymo LabelWriter 450 Twin Turbo. I actually own two. At work, I use the two label spools to print envelope labels and, very occasionally, file folder labels. At home, he prints envelope labels and stamps. You haven't lived until you've owned a label printer.
I use my iPhone as my office phone. To avoid giving my cell phone number to everyone (though I'm not sure it really matters), I use a Google Voice number as my primary business phone. I just have all calls to my Google Voice number ring directly to my cell phone. Google Voice gives you the flexibility to decide how to route calls to the number based on time of day, so if you do have an office phone or a receptionist or intake specialist, you can have the Google number ring one phone during business hours and a separate number after hours.
I'm probably going to get brain cancer from the radiation at some point, but until then, I'll keep itemizing my business use of my iPhone and deducting that portion as a reasonable business expense. (That's not tax advice: it's just what I do.)
You're going to have to mail stuff. If your office doesn't provide a postage meter, you'll need one. Pitney Bowes does a good job with that, but I prefer (and use) the Dymo Stamps software at my home office. You'll need a scale to weigh your postage and then you can just print postage on your Dymo Twin Turbo.
I don't use a fax machine. I use Hello Fax. A "Let's Start a Law Firm" listener recently pointed out that fax machines actually do have their benefits. They are more secure than an email with attachments because they are a point-to-point communication rather than a message that gets bounced around multiple servers. If you're going to get a fax machine, avoid an all-in-one printer-scanner-fax-coffee-maker-copier. Get the right tool for the right job. Not a compromised machine.
Before I moved into my current office space, which I rent from another law firm that leases a big-ass copier, I didn't have a copier. In my opinion, you don't need one. Get a good scanner (see below), and if you need copies, print the scan.
Repeat after me: "I will only use Fujitsu Scansnap products." Do not buy any other scanner. Get the Fujitsu Scansnap iX500. Spend the dough. Thank me later.
There are some law-specific office supplies that are difficult-to-impossible to find locally or on Amazon. I buy, for example, all of my number and letter tab inserts for exhibits to briefs at E-Legal Supply. (For a list of the envelopes, paper, pens, notebooks, and other office-supply minutiae, you can check out the notes for Episode 3 of Let's Start a Law Firm.)
Confession: Sometimes I do work just so that I have an excuse to use my Prodigy PaperPro stapler. I recently purchased the big boy—the Prodigy PaperPro 1300 Stackmaster—for communal use at the office copier and I am now a demigod at my office. I am Prometheus, stealer of fire. (Aside: "Stackmaster" must be one of the greatest marketing terms of all time.
Since I purchased a Fujitsu Scansnap, I no longer need file cabinets. I don't use them, but if I did, I'd only buy Hon-brand file cabinets.
Here's a #protip: if you need a cable for you TV, iPhone, DVD player, projector, monitor, internet, receiver, fill-in-the-blank, buy it from Monoprice.com. You are getting scammed basically everywhere else, especially at Best Buy. Sorry to be the bearer of that bad news. Don't feel too bad, though. I once purchased really crappy speakers for far too much money from some dudes in a white van.
How are you going to get all this great stuff to your office? With the exception of Geek Desk, Monoprice, and E-Legal Supply: Amazon Prime.
That's pretty much it. The takeaway, I hope, is that it has never been easier or less expensive for a small practitioner to set up a mobile-capable, relatively paperless law office while still being able to produce a very professional finished product for clients and courts.
Again, if this list has been useful, don't be shy about sharing it with others. Help them out. We nerds tend to think that everyone knows that Fujitsu Scansnaps are the only kind of scanners people should be using, but my IRL experience with non-nerds has proven to me that this is not the case.
Get the tools and use them to hammer out justice for your clients and the world.
Gregory Alan Isakov is playing in my office now and at Headliners with Josh Ritter this evening.
We've all been there: you get a scheduling order from the Court and it contains approximately 854 deadlines, each one different and each one scheduled based on a number of days from either a) the date of the order itself or b) the date of the trial the Court has scheduled.
I use "Date Time Calc 2" to quickly perform date math for my cases. Actually, I use Date Time Calc, version 1, but when I went to write this post, I learned that the developer had just released a new version of the application. So, I guess it's more accurate to say, "I will be using Date Time Calc 2 to perform date math.
This is useful not just for quickly crunching court deadlines, but also in writing letters to other attorneys: "It has been __ days since I last sent you a settlement offer, so I thought I would write again to see if your client had had enough time to consider the offer." "The discovery is now __ days overdue."
I'm not going to belabor this post with a long explanation of how the app works. It's obvious how the application works: you click the date on one calendar, give it a number of days to count forwards from or back from, and it tells you on the other calendar what the second date is. It does one thing well—date math—which is all I need it to do.
(For cost-conscious attorneys, the original Date Time Calc app is $2.99 instead of $4.99 for the newer 2.0 version. It is still available for purchase. As mentioned above, I am using the original, but plan on updating for two reasons: 1) the new version will get updates and bug fixes more often and 2) I don't mind spending money (especially when it's just a few bucks) supporting developers that make applications that help me get my work done quicker and more gracefully.)
Last fall, the National Consumer Law Center released a report, "No Fresh Start: How States Let Debt Collectors to Push Families into Poverty" in which it surveyed the exemption laws in each state. Exemption laws are laws that describe the limits of what a creditor can take from a debtor in order to collect on a judgment.
How much of a worker's paycheck can a creditor garnish? Can it foreclose on a debtor's home? Can it seize the debtor's car? What about household goods? Can a creditor take those to collect a debt?
These questions are largely answered by state, not federal, law. And, if you're a debtor in Kentucky, the answers are not good. The NCLC gave grades to all fifty states based on the protections the state has in place to ensure that a creditor's collection efforts cannot push a hard-working family into destitution.
Kentucky is one of four states to receive an "F". (Mississippi, Michigan, and Delaware were the other three.)
The NCLC graded the states on the following criteria:
Kentucky failed all of these tests.
The NCLC has drafted a Model Family Financial Protection Act that will protect the basic dignity and financial integrity of Kentucky's families, even those struggling to repay debts. I encourage my politically-minded friends and my friends that are legislators to take a close look at the NCLC's report and recommended legislation and work to do a better job protecting our families from debt collection efforts that push them into poverty and bankruptcy.
At Ben Carter Law, I defend people from baseless collection efforts, prosecute debt collection abuses, and help people file for bankruptcy to get a clean financial slate. But, I wish Kentucky's laws did more automatically to help families protect the basic necessities of life from collection efforts and trust that the day is coming that the legislature will change the laws to benefit Kentucky's families, not creditors.
I've been meaning for a while to write about lawyering as the closest distance between words and change. Then, on a recent episode of Let's Start a Law Firm, I accidentally spoke what I had been intending to write. Being a lawyer is awesome and if you're one who happens to love words, it's even awesomer.
This two minute clip pretty much says it all.
To be a little (more) self-involved, here are my favorite moments:
"Bank accounts get smaller and they get bigger based on the words that we put on pages."
"I was an English major because I think writing is important and that it can change the world. As a lawyer, you are at the very center of that possible change."
I feel very grateful to all of the teachers and friends in my life that helped me get okay at writing and at least appreciate that the serial comma matters.
If you're a lawyer, you owe it to yourself and your clients to become and remain curious about words and writing. They are, often, all we've got and, miraculously, all we need to change the world.
In an upcoming episode of Let's Start a Law Firm about law firm goals and "getting better", and “resolutions” for 2014, I talked about an iPhone app that I’ve been using to track some of my goals for 2014. (As an aside, you should really listen to the episode because Annie and I talk about how New Year’s Resolutions can be dangerous and cause more harm than the good they may or may not do.)
Before talking about the application itself, I think it’s important to explain the kinds of goals I’ve set for myself as a person and for my practice. I don’t resolve to “be more loving” or “be more contemplative”. I try to set goals that are measurable and will encourage me to get better over time.
Here are my goals for 2014:
Here is the crux of these goals: they are designed to encourage me to make lasting changes in the things I do each day. But, they are gentle enough and flexible enough that I don’t have to do any one of them every single day. Even though I don’t have kids or a real job and I could schedule a workout on Monday, Wednesday, and Friday of each week and a blog post each Monday morning and times for me to sit quietly on Tuesday, Thursday, and Sunday morning, that kind of structure has never been super-helpful to me. Inevitably, I miss one of those dates and I just start feeling bad. Feeling bad is not the point of trying to get better. The point is to get better.
I want my life to move in the direction of working out more often, writing more, filing more bankruptcies, and working from home more frequently. To do that, I'm encouraging myself into new patterns and new practices that will get me there.
What I love about Strides app is that it allows me to set long-term goals and then track my progress towards that goal each day, week, or month. The best part about the app is that it tells me whether I’m ahead or behind of my long-term goal and allows me to adjust my behavior accordingly in the moment. If I’m behind, I haven’t failed. I just need to work to generate more bankruptcy work for myself, schedule a trip to a state park, or go work out.
Here’s what some of my goals look like right now. You can see from my “Home Work” goal that the 6 times I’ve worked from home so far puts me pretty far ahead of the 3.8 times that would put me on track to meet my goal. It also projects that on my current pace, I’ll work from home 156 times this year. GREAT!
But, as you can see, I’ve only posted two blog posts to Ben Carter Law, which puts me on pace to post 48.7 in 2014—4 short of the 52 I want to post. (Knowing I’m off-pace is one of the reasons I’m writing this right now.)
If you want to get better at something, think about setting a long-term goal that you can work towards now and using Strides to give you good feedback on whether you are on track to meet your goal. That’s it. It is a really good app.
The rest of this post is a little bit more “in the weeds” about how the app itself works and how it could be improved. So, if that’s not your thing, I understand. (But, it does contain a useful tip for users from the developer...)
After using Strides for a few days, I was having some issues with updating the totals each day. I got some really helpful feedback from the developer. Here’s the exchange.
Thank you for Strides. I'm an attorney and was looking for an app to help me meet some of my personal and professional goals in 2014 and your app provides the flexibility to track goals like "work out 200 times" and "bill 120K" and "work from home 100 days" and "write 52 blog posts". I've looked for other apps, but I think yours is the closest to how I want to structure and track my goals. I really appreciate the feature that lets me know whether I'm ahead or behind of year-long goals. This allows me the opportunity to modify current behavior to reach long-term goals. Awesome.
I have two suggestions. Please allow me to "check off" (add +1) to a goal just by hitting the number total in the goal summary page. In other words, instead of navigating to the tracking page, make the total number inside the circle a button that adds one to the numerical value in the circle. I think that would be a good function in and of itself, but I also want this feature because I'm having a really hard time getting the "add to total" toggle button working correctly. Each night for the past five nights, I've gone in to update my totals and the button seems to perform differently (erratically). One night, the toggle will be to "on" and I'll add "1" and it will reset my total to "1" for the year. Another night, I'll toggle it to "off" and change the number from 4 to 5 and it will add 4 and 5 to give me 9. It's sort of maddening and the one downer to the app right now. It's especially frustrating because it's so close to being exactly what I'm looking for!
Anyway, I've never written a developer with a feature request before, but know enough to know that you probably get a lot of requests and just hope you'll put this one on the list in its appropriate priority.
Many thanks, bc
And then the developer wrote me back:
Thanks for the feedback! I'm so glad to hear you're enjoying Strides.
We're working on a bunch of fixes to the Add to Total function for the next update. Sorry about that! It worked perfectly for all the beta testers, but we've found lots of little bugs that slipped through the cracks, so we'll get those fixed soon.
In the meantime, I would recommend turning Add to Total OFF and entering the new total, rather than the addition (e.g. 9 instead of 5) since the math is easy for this particular tracker.
I'll also think through the +1 idea from the circle chart. I totally get the value there, so I think we'll be able to do that in an update. Either way, we'll get Add to Total working correctly for you. :)
Thanks again for reaching out, and have a great day!
So, that’s awesome. And, the tip that he gave about turning "Add to Total OFF" for the time being and entering a new total is working for me.
After using it for a couple more weeks, I have a couple more suggestion for future revisions. First, I would like the option to “snooze” recently updated goals. The app allows users to decide how frequently they want to review progress toward their goals. On many of these, I have a daily review scheduled at 6 p.m. because they’re things that I may have done that day: work from home, work out, write a blog post. Others, I only review once every few weeks (bankruptcies) or once a month (visits to state parks).
I would like a feature that allows me to not have to get a notification to review “work out” or “sit for 10 minutes” at 6 p.m. if I’ve updated that goal’s total within the last 24 hours. If I’ve updated the total, it’s because I worked out or sat earlier that day. The notification is just a hassle at that point. The point of the notification is to remind future you that “these are things that you might want to consider doing” and if I’ve already done that thing recently, I don’t want to review it.
Related to reviewing goals, in the "menu" page (shown above), a right swipe gives the user the option to delete the goal. A left swipe in this view should take the user directly to the page on which they can update the goal's total, whether that's hours worked that day, calories consumed, or times the user sat quietly for ten minutes.
These would be small usability improvements I’d like to see in an app that is really, really helping me a lot.
Yesterday, Brian Cook, John Bahe, and I filed a lawsuit in Jefferson County Circuit Court against Bridal Warehouse, Inc. The lawsuit alleges that Bridal Warehouse has violated Kentucky's Consumer Protection Act by engaging in false, unfair, deceptive, and misleading acts and practices for many years.
Specifically, the suit alleges that Bridal Warehouse has promised to "special order" new dresses from the manufacturer to thousands of brides. Rather than doing what they promised to do, the company would deliver to their customers a used dress from the floor of one of their other store locations. In other words, instead of delivering to their customers a new dress from the manufacturer, Bridal Warehouse would deliver dresses that had been used by other customers. Many customers were charged a premium for this "special order" from the manufacturer.
Bridal Warehouse, Inc. has four store locations:
The lawsuit seeks class certification for the injured customers who are residents of Kentucky. Here is a copy of the Complaint we filed against Bridal Warehouse, Inc.
If you placed a "special order" for a dress from Bridal Warehouse, Inc. in the last 15 years, you may be a member of the class of injured individuals. For more information about the suit or to ask us to review your case, fill out this form or contact us by calling 502-587-2002.
I'm probably the last person you should be taking budgeting advice from. Turns out, majoring in English and going to law school didn't really do a lot to prepare me to run a business. (This is a bit of a misstatement. Truth is, majoring in English helped instill in me the values that I use every day to advocate for consumers against some of our country's most powerful industries. What I mean is that majoring in English and going to law school didn't really give me a whole lot of insight into the logistics and practicalities of starting and running a law firm.)
That being said, I want to share a spreadsheet with you that I've developed for my own practice and life that has helped me figure out exactly what I need to be making each month to survive as a business and person. Basically, it's a two-sheet workbook. The first is for determining my monthly business expenses and the second is my monthly personal expenses.
I determine my monthly business expenses by totaling all the monthly expenses, totaling all the annual expenses, dividing my annual expenses by 12, and adding my monthly expenses and 1/12th of my annual business expenses together.
Then, I carry that figure over to the second sheet of the workbook. The second sheet contains all of my personal monthly expenses. After totaling those expenses, I determine taxes by multiplying my personal monthly expenses by 1/3. (This is not a technically accurate measure of my tax liability. Technically, my tax liability will be on the net profits of my business, not the money I take to pay personal expenses. But, because at this point of my practice all net profits go to pay personal expenses, this is a "close enough" measure for me.)
Adding my monthly personal expenses and my tax liability gives me my "Personal Monthly Nut"—the amount of money I need to pay personal bills, my country, and my Commonwealth.
I've carried over my "BCL Monthly Nut" from Sheet 1 of the workbook and add that to my "Personal Monthly Nut" to determine my "Great Big Monthly Nut"—the amount of money I need to make it all work.
Finally, and this is what let's me sleep at night (or, keeps me up at night), I've calculated the amount of money I "Must Bill and Collect Each Day" to make my "Great Big Monthly Nut". I determined this amount by dividing 365 by 12 to get the average number of days a year and multiplying that number by 5/7 to allow myself two days each week of not billing anything. Ostensibly, that's to account for a weekend. This gives me 21.72 working days each month to work towards my "Great Big Monthly Nut".
Knowing how much money I need to bill and collect each day gives me one metric by which I can measure any given day. Sure, it's nice when a client calls and gives you good news. It's nice to talk with someone who says, "You're the only person who has called me back." Those are other metrics that I use to measure my day. But, if you're going to run a small business, you've got to be using the "Must Bill and Collect Each Day" metric, too. I can't pay rent with warm fuzzies and I can't pay court filing fees with good karma.
You can view, download, and modify my budget to suit your purposes. I should say that mine is constantly changing as I grow, cut services, move offices, etc. The goal is not down-to-the-penny accuracy, but rather to give me a goal to work towards and to measure my performance against.
I read an article recently that explained that Kentucky was one of only eight states that had a statute that required that employers allow employees to take (and be paid for) at least two 10-minute breaks during an eight hour workday.
I have to say, as a Kentuckian I have grown accustomed to seeing Kentucky appear at the bottom of lists we would like to be at the top of and the top of lists we'd like to be at the bottom of. So, discovering that we offer workers the basic protection and dignity of two ten-minute breaks during a day's work was heartening. The Department of Labor provides summaries of mandatory rest periods and lunches in Kentucky and across the nation.
Of course, having the statutory right to a break and actually getting the break are two separate matters. In this lawyer's opinion, employers who do not provide workers with those breaks are violating Kentucky's wage and hour laws. These employers are opening themselves up to potential liability for money damages awarded to their employees for denying their employees these breaks.
If you or someone you know is working for a business that does not provide its employees the breaks its workers are entitled to by statute, you should contact an attorney today.
The January issue of Vanity Fair has a long, important article about the dangers of the birth control device, NuvaRing, manufactured by Merck. The article tells the story of two women—one killed and one permanently injured—by NuvaRing. But, my best friend's sister died last year from pulmonary embolisms caused by NuvaRing, so I do not need this article to humanize this regulatory and personal disaster.
The article provides very useful information for consumers and non-lawyers about the regulatory and legal framework in which harmful drugs are introduced to market and in which attorneys struggle to seek justice for those who have been injured or killed by those drugs. If you are interested in understanding from a very real-world situation what "agency capture" or "mass tort" litigation looks like, this article is a must-read.
For the rest of you, please, ask every woman you know whether she is using Nuvaring and share this article with her.
While it is hard to find an exemplary pull quote from this long and excellent article, this quote demonstrates the extent to which drug companies will go to obscure science in search of ever-expanding profits.
In September 2001, as the F.D.A. was considering the approval of the completed application, court documents submitted by the plaintiffs claim, Organon scientists had become concerned with “the burst release” and what they called “out-of-spec results” in “large-scale NuvaRing batches.” One member of the regulatory-affairs team e-mailed a colleague, “This is a very serious issue, in that FDA is very sensitive to the ‘burst release’ phenomenon and release in general. Going to FDA to change these specifications is absolutely the LAST thing we should consider, i.e., that’s the worse possible scenario.”
I am angry all over again.
Earlier this year, I asked Kentucky cyclists what their greatest fears were. In a totally unscientific tallying of the responses, here's my impression: The two most commonly cited fears were, unsurprisingly, getting hit by a moving car and getting doored. I can sympathize. I'm looking in the rear window of every single parked car I ride past to see if there is a driver getting ready to exit the vehicle and throw me into traffic.
I also asked what Kentucky cyclists fear that I had not considered. Boy, you all are creative bunch. Among the things you fear (and that I now have to consider) are:
For many reasons, The Big Lebowski is one of my favorite movies of all time. After many viewings, I know the movie basically verbatim (because I'm a lawyer, I'm required to use Latin instead of just saying "word-for-word" or "by heart"). So, I suppose it's not surprising that I often find myself quoting the movie during everyday conversation. What is surprising, though, is just how often I find myself wanting to use quotes from The Big Lebowski in my work as a lawyer: from trying to settle cases, to talking with clients, to negotiating discovery disputes with opposing counsel, to brainstorming with co-counsel.
But, on further reflection, the movie is filled with high-drama characters, multiple conflicts, arguments about money, a stoner, a money-grubbing hussy, a pompous rich guy, a severed toe, a lot of caucasians, and some nihilists, so it seems natural that situations in my life as a lawyer would be amenable to Lebowski allusions.
Here is a list of those quotes from The Big Lebowski that I either a) have used or b) aspire to use in my advocacy before I retire. I will leave it to you, the reader, to guess which ones I've already used and encourage you to use them, as well.
Question for my lawyer friends: Have .gifs become widespread enough that we can start including reaction .gifs in emails to insurance adjusters and opposing counsels? Or, do I have to wait a few more years for the technology to become more commonplace before this is appropriate?
For the last few months, I've been recording a podcast with my buddy, Annie O'Connell, about how to start a law firm. It's called "Let's Start a Law Firm" and it's been a lot of fun. One of the more consistent things that we hear from listeners is that they're not lawyers, but they're running small businesses and still find our thoughts on running a law firm useful in their own businesses. That's extremely gratifying to hear.
If you are new to listening to podcasts, two thing: First, WELCOME! Second, you may want to consider getting a dedicated app on your iPhone or other mobile device to listen to podcasts. This class of apps is called "podcatchers" and you can buy them in the App Store. Ben uses Downcast. Instacast is very popular with the nerds, as well. Annie uses Stitcher and Ben is not judging her for that.
You can subscribe to the podcast feed in iTunes to get future episodes automatically. If you like the show, please rate the show in iTunes or leave a review. There's really nothing better you can do than rate and/or review the show on iTunes to help new people find this podcast. Of course, tweets and links on Facebook don't hurt, either.
Ben Carter is known around Kentucky as a passionate, effective advocate for consumers. He represents consumers that have been abused by unfair and deceptive acts and practices and people who have been harmed by the negligence of others: patients harmed by reckless doctors, clients whose attorneys have neglected their cases, passengers, drivers, bicyclers, and pedestrians harmed or killed by careless drivers.
Ben Carter Law PLLC | 312 South Fourth Street, Sixth Floor, Louisville, KY 40202, USA