Samek & Rotbert LLC

Commercial E-Mail

Roger Samek — Sun, 25 Apr 2010 18:20:14 +0000

A person may not initiate the transmission, conspire with another person to initiate the transmission, or assist in the transmission of commercial electronic mail that:

(1) Is from a computer in Maryland or is sent to an electronic mail address that the sender knows or should have known is held by a resident of Maryland; and

(2) Uses a third party’s Internet domain name or electronic mail address without the permission of the third party; Contains false or misleading information about the origin or the transmission path of the commercial electronic mail; or (iii) Contains false or misleading information in the subject line that has the capacity, tendency, or effect of deceiving the recipient.

A person who violates the foregoing is liable for reasonable attorney’s fees and for damages: (1) To the recipient of commercial electronic mail, in an amount equal to the greater of $500 or the recipient’s actual damages; (2) To the third party without whose permission the third party’s Internet domain name or electronic mail address was used, in an amount equal to the greater of $500 or the third party’s actual damages; and (3) To an interactive computer service provider, in an amount equal to the greater of $1,000 or the interactive computer service provider’s actual damages.

Commercial Law Article of the Maryland Annotated Code, Title 14, Subtitle 30

Maryland Bulk Sale Rules

Morgan Robinson — Mon, 19 Apr 2010 16:19:07 +0000

Under the Maryland bulk sale statute, the purchaser of a business has a dual duty to first notify the seller’s creditors of the upcoming sale, and second, to ensure that any creditors of the seller are paid out of the proceeds of the sale. The purchaser must send out written notices to the seller’s creditors at least ten days prior to closing. A purchaser’s duty to ensure creditors are paid extends thirty days from the date notices are sent. In a transaction where the bulk sale statute is applicable, if the purchaser does not elect to withhold some of the purchase price at closing to cover seller’s debts, it may have unintended transferee/successor liability. MD Code, Commercial Law, §6-101 – §6-110

Employment Law

Suzanne Rotbert — Wed, 10 Mar 2010 16:22:11 +0000

Under the Fair Labor Standards Act of 1938, as amended, certain non-discretionary gift, bonus or commission payments must be included in a non-exempt employee’s regular rate for purposes of computing the employee’s overtime rate. 29 USC § 201 et seq.; 29 CFR Parts 510 to 794.

Business Law

Suzanne Rotbert — Wed, 10 Mar 2010 16:18:04 +0000

The FTC adopted a new rule, known as the “Red Flags Rule” which requires many businesses and organizations that take payment by credit cards to implement a written identity theft prevention program to detect the warning signs of identity theft in their day-to-day operations. 16 CFR Part 681.

Employment Law

Roger Samek — Sun, 24 Jan 2010 17:15:12 +0000

Under Maryland law if an employer fails to pay an employee, after 2 weeks have elapsed from the date on which the employer is required to have paid the wages, the employee may bring an action against the employer to recover the unpaid wages.

If, in an action, a court finds that an employer withheld the wage of an employee in violation of this subtitle and not as a result of a bona fide dispute, the court may award the employee an amount not exceeding 3 times the wage, and reasonable counsel fees and other costs.

Labor and Employment Article of the Maryland Code Annotated, Section 3-507.1.

Commercial Lease

Roger Samek — Sun, 17 Jan 2010 02:12:30 +0000

Maryland law provides that if the effect of any provision of a lease is to indemnify, hold harmless, or exonerate the landlord from any liability to the tenant, or to any other person, for any injury, loss, damage, or liability arising from any omission, fault, negligence, or other misconduct of the landlord on or about the leased premises or any elevators, stairways, hallways, or other appurtenances used in connection with them, and not within the exclusive control of the tenant, the provision is considered to be against public policy and void.

Section 8-105 of the Real Property Article of the Maryland Annotated Code.

Business Licenses

Roger Samek — Sun, 03 Jan 2010 20:40:59 +0000

A person may not provide individual tax preparation services in Maryland unless registered by the State Board of Individual Tax Preparers (“Board”). This requirement does not apply to licensed accountants, attorneys and individuals enrolled to practice before the Internal Revenue Service who is governed under circular 230.

Written disclosures must be provided to the customer at an initial meeting between the individual tax preparer. The same disclosures must be provided on the individual tax preparer’s website. The disclosures include:

(i) the individual tax preparer’s name, address, and telephone number;

(ii) that the individual tax preparer is not a certified public accountant, an enrolled agent, or a tax attorney;

(iii) services that the individual tax preparer is qualified to provide; and

(iv) the individual tax preparer’s education and training, including examinations taken and successfully passed.

An individual tax preparer is required to maintain records as required by Federal law, and may not (i) fail to sign a customer’s individual tax return, (ii)obtain the customer’s signature on an individual tax return prior to the completion of the return, or (iii) disclose information received for the purposes of preparing a customer’s federal or State income tax return, unless consented to in writing by the customer, expressly authorized by law, necessary for the preparation of the tax return, or in accordance with a court order.

An individual who is aggrieved by a violation may pursue his or her remedies for an “unfair trade practice” (which allows for a recovery of actual damages and attorneys fees) as well as to bring an action to recover $500 for each violation and actual damages sustained as a result of the violation.

Title 21, of the Business Occupations and Professions Article of the Maryland Annotated Code.

Wills & Estate Planning

Roger Samek — Sun, 20 Dec 2009 02:28:48 +0000

A person who dies without a Will is considered to have died intestate. In Maryland a spouse who dies intestate leaves his or her assets pursuant to the laws of intestate succession.

If there is a surviving minor child, the surviving spouse’s share is one-half.

If there is no surviving minor child, but there is surviving issue, the spouse’s share is equal to the first $15,000 plus one-half of the residue.

If there is no surviving issue but a surviving parent, the surviving spouses share is equal to $15,000 plus one-half of the residue.

If there is no surviving issue or parent, the surviving spouse’s share is the whole estate.

§ 3-102 of Estates and Trusts Article of Maryland Annotated Code

Home Improvement Contractor

Roger Samek — Fri, 27 Nov 2009 01:49:29 +0000

In Maryland a person may not act or offer to act as a home improvement contractor unless the person has a contractor license. A person may also not sell or offer to sell a home improvement unless the person has a contractor license or salesperson license.

A person who violates this requirement is guilty of a misdemeanor and, on first conviction, is subject to a fine not exceeding $1,000 or imprisonment not exceeding 30 days or both and, on a second or subsequent conviction, is subject to a fine not exceeding $5,000 or imprisonment not exceeding 2 years or both.

§ 8-601, et, al. of Business Regulation Article of Maryland Annotated Code Acting as contractor or subcontractor or selling a home improvement without license.

Wholesale Sales Representative

Roger Samek — Wed, 11 Nov 2009 02:37:15 +0000

Each principal shall pay to a sales representative all commissions that are due under a contract that is terminated, within 45 days after payment would have been due if the contract had not terminated. If a principal violates the foregoing, a sales representative may be entitled to bring an action against the principal to recover up to 3 times the amount of all commissions that the principal owes to the sales representative.

Labor and Employment Article of the Maryland Code Annotated, Section 3-604 et seq.