Table of Contents
- Washington State Law Posts
- Regulating ICOs
- One-year statute of limitations – Embezzlement
- Regulatory Compliance: It’s the Little Things…
- Fair Chance – Washington
- WA Consumer Protection Law applies extraterritorially
- Collapse of building for insurance purposes
- Waiver Under Washington’s Deed of Trust Act Permitted Where Technical Violations Did Not Harm Plaintiff
- State Supreme Court Finds Washington’s Anti-SLAPP Statute Violates Right to Jury Trial
- Business Liability for Foreseeable Harm
- Failure to Reconvey: Quiet Title Without a Quiet Title Action
Washington State Law Posts
All Washington State law posts from Tollefsen Law
Note our disclaimer – these materials are no substitute for legal advice. The articles may be out of date, be incomplete, contain errors, or not be relevant to the fact situation you are researching. Do not rely on the information found on this website to make a legal or business decision.
Regulating ICOsRegulating ICOs The regulators of money and securities are facing a new challenge with the emergence of crypto-currencies like Bitcoin. Not only do crypto-currencies live in cyberland computers usually outside the jurisdiction of the regulators, their mere existence is a challenge to the modern notion that only nation-states have the right to issue fiat currencies. Recently the Securities and Exchange Commission has entered the fray. It used to be said the securities regulators could be divided between the philosophy of the states and the philosophy of feds. The states were adherents to the central government control view (called “merit review”) believing that the staff of the Department of Financial Institutions (DFI) in Olympia knew what was good for investors and would be the appropriate gate-keepers for the investing public. For example, when Apple Computer went public, DFI would not approve its IPO stock for sale in Washington (it was too risky) so Washington investors had to purchase post-IPO stock at a substantial premium on the national public markets. The SEC was said to hold to a view that anything could be sold if there was full disclosure. Over time, the positions modified. The SEC is now known to make it difficult or impossible to register an offering its employees do not like. Recently the SEC insisted on applying traditional stock trading and Investment Company Act of 1940 rules to registration of crypto-currency ETF-like funds which were designed to allow investor speculation in a basket of crypto-currencies1Staff Letter: Engaging on Fund Innovation and Cryptocurrency-related Holdings, January 18, 2018. In a typical government “catch-22”, now that the SEC had held...
One-year statute of limitations – EmbezzlementONE-YEAR STATUE OF LIMITATIONS – EMBEZZLEMENT Copy of case: (Travelers Casualty & Surety Co., v. Washington Trust Bank, No 92483-0) 1611-travelers-casualty-surety-co-v-washington-trust-bank Often the only hope of financial recovery from an embezzlement, other than from insurance policies, is from a bank which paid on forged endorsements (also spelled “indorsements”). A recent case (November 3, 2016) held that the statute of limitations in such cases is only one year in Washington State.1Travelers Casualty & Surety Co., v. Washington Trust Bank, No 92483-0 An employee of a nonprofit serving disabled adult client~ used her position to embezzle more than half a million dollars held by the nonprofit for its clients. She did this by drawing checks from the nonprofit’s account payable to its clients, signing the back of those checks with her own signature, and cashing them at the nonprofit’s local bank. The embezzlement was discovered in an admission in the employee’s suicide note. The Bank sent monthly bank statements during the embezzlement period. These statements included copies of the fronts of the checks that had been cashed at the Bank. The statements did not include copies of the backs of the checks, which would have readily revealed the embezzler’s signature. During the relevant period of time, the victim could access its checking account online at any time to view both the front and backs of checks that cleared its account. The online process required clicking an account to view, clicking a link for the front of the check, clicking a link for the back of the check, closing the check, and repeating as necessary. RCW 62A.4-406(f) provides: “Without regard to care or lack...
Regulatory Compliance: It’s the Little Things…
Regulatory penalties can be devastating for a company, yet many companies, especially small companies, fail to plan for or devote resources to regulatory compliance. These companies can be confused and incredulous when they become the focus of investigations or sanctions and may delay responding until their very existence is at stake. Proper counsel can help companies understand regulators’ focus which helps them to prepare for and address compliance issues in a timely manner.
Fair Chance – WashingtonBan-the Box Legislation Fair Chance – Washington h-3695.1-fair-chance-act New legislation beginning to emerge around the country may initially seem counter-intuitive to CFEs. The new laws prohibits employers from asking an applicant about his/her criminal history on a job application or during initial screening and delays that inquiry until after an applicant is determined to be otherwise qualified for the job. There is something in us CFEs that wants to know all but it is becoming clear that many of those caught up in the criminal system have little chance of becoming contributing citizens once they are branded as a criminal. On November 3, 2015, President Obama signed a ban-the-box (aka “Fair Chance”) executive order addressed to federal agencies (referring to the box to check on an employment application affirming a criminal conviction). According to the National Employment Law Project there are more than 100 cities and counties around the country that have adopted ban-the box rules. Effective October 27, 2015, the New York City Human Right Law was amended by The Fair Chance Act.1N.Y.C. Administrative Code §8-107(11-a) . Guidance which promises vigorous enforcement was published. 2 http://www.nyc.gov/html/cchr/html/coverage/fair-chance-legalguidance.shtml In December of 2015, Portland, Oregon adopted a Fair Chance Law. Under their version of the law, employers are prohibited from inquiring about or even accessing an applicant’s criminal history from any other source before making a “conditional offer of employment.” This is defined as being any offer that is conditioned solely on the results of the criminal background inquiry or some other contingency that is expressly communicated to the applicant at the time of the offer. There currently is a Ban-the-Box bill...
WA Consumer Protection Law applies extraterritorially
Under the CPA an out-of-state plaintiff may bring a claim.against a Washington corporate defendant for allegedly deceptive acts. Similarly, an out:of-state plaintiff may bring a CPA claim against an out-of-state defendant for the allegedly deceptive acts of its in-state agent.
Collapse of building for insurance purposesQUEEN ANNE PARK HOMEOWNERS ASSOCIATION, a Washington non-profit corporation, v. STATE FARM FIRE AND CASUALTY COMPANY, a foreign insurance company, June 18 2015 Copy of Case 2015-Queen-Anne-Park-v-State-Farm The Washington Supreme Court held that collapse means substantial impairment of structural integrity. The dissent argued collapse means “collapse”. Part or all of the building fell down. The Ninth Circuit Court of Appeals asked the court to decide this question: What does “collapse” mean under Washington law in an insurance policy that insures “accidental direct physical loss involving collapse,” subject to the policy’s terms, conditions, exclusions, and other provisions, but does not define “collapse,” except to state that “collapse does not include settling, cracking, shrinking, bulging or expansion?” The insured building was found to have “hidden decay” that had substantially impaired the walls’ ability to resist lateral loads according to the owner’s inspector. Hidden decay that caused a collapse was expressly covered by the policy. “Construction of an insurance policy is a question of law for the courts, the policy is construed as a whole, and the policy ‘should be given a fair, reasonable, and sensible construction as would be given to the contract by the average person purchasing insurance.”‘1Queen City Farms, Inc. v. Cent. Nat’l Ins. Co. of Omaha, 126 Wn.2d 50, 65, 882 P.2d 703 (1994) (internal quotation marks omitted) (quoting Grange Ins. Co. v. Brosseau, 113 Wn.2d 91, 95,776 P.2d 123 (1989) ). The court held that “collapse” is ambiguous because it is subject to more than one reasonable interpretation. In this case there were two conflicting rules of interpretation: 1) plain meaning versus 2) favor the insured if...
Waiver Under Washington’s Deed of Trust Act Permitted Where Technical Violations Did Not Harm PlaintiffMerry v Nationstar –Wn App 324745-III Background to Deed of Trust In 2007, Sharon Weirich borrowed $205,440 from Countrywide Home Loans, Inc. and executed a Deed of Trust on her real property as security. The deed identified Countrywide as the lender, Landsafe Title of Washington as the Trustee, and the Mortgage Electronic Registration Systems, Inc. (MERS) as “a separate corporation that is acting solely as a nominee for Lender and Lender’s successors and assigns.” In Bain v. Metropolitan Mortgage Group, 175 Wn.2d 83, 93, 285 P.3d 34 (2012), the Supreme Court of Washington held that the MERS registry’s business practices in creating and transferring beneficial interests with regard to mortgages conflict with the requirements of Washington’s Deed of Trust Act. Beginning in 2011 MERS made a number of assignments and changes in ownership of the note, beneficiary, and trustee using the business practices found to conflict with the Deed of Trust Act. Following these changes, in October 2012, Northwest Trustee Services, Inc. served Mrs. Weirich with a notice of default on behalf of Bank of America. The same month Ms. Weirich executed a deed of trust to Thomas Merry. This deed of trust secured payment of a $68,000 promissory note. Ms. Weirich also executed a power of attorney and an assignment of legal claims to Mr. Merry. In December 2012, Ms. Weirich received a notice of trustee’s sale informing her that her property would be sold on April 19, 2013 to satisfy her promissory note she originally gave to Countrywide. However, property was not sold on April 19, 2013 and no sale was rescheduled within the 120-day window...
State Supreme Court Finds Washington’s Anti-SLAPP Statute Violates Right to Jury TrialOn May 28, 2015, in Davis v Cox, the Washington State Supreme Court invalidated the Washington Anti-SLAPP statute, RCW 4.24.525. In a unanimous decision, the Court found that section (4)(b) of statute unconstitutionally violates the right to a jury trial. The Court further held that, because every other section in RCW 4.24.525 is dependent upon section (4)(b), the provision is nonseverable and the statute is invalid as a whole. The Washington Anti-SLAPP statute was adopted to address and dissuade “lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances”. A defendant may file a special motion to strike any “action involving public participation and petition”. If the action is found to involve “public participation and petition”, the responding party must “establish by clear and convincing evidence a probability of prevailing on the claim”. If the moving party prevails, the statute contains a provision for a mandatory $10,000 civil penalty and attorney fees for instituting a lawsuit in violation of the statute. The focus of the Court’s decision was the standard of proof placed upon the party responding to a special motion to strike. The responding party must “establish by clear and convincing evidence a probability of prevailing on the claim”. The Court held that the statutory language requires a trial judge to make factual findings and adjudicate the claim. Article I, Section 21 of the Washington State Constitution states, “The right of trial by jury shall remain inviolate”. The Court noted that, “At its core, the right of trial by jury guarantees litigants the right to...
Business Liability for Foreseeable HarmMcKown v Simon Property Group, Supreme Court of Washington, March 5, 2015 Decision: 050405-McKnown-v-Simon-Properties After 40 years of practicing U.S. law, I have grown to appreciate the gift we received from our colonizing parent, the common law. The civil law systems suffer from the same rigidity that all statutes impose: one size fits all. The legislature drafts a statute as a solution to a perceived problem not understanding how it might be unjust in a different fact situation. The common law can smooth out these injustices by providing court-made law which reacts to the facts and needs of justice in a particular case. The negatives of the common law system that has decisions made by juries include unpredictability and indefensible awards. The common law has invented tools to minimize the negatives. One of those tools is “foreseeability”. It allows a court to claim that no one could have foreseen the harm so the defendant is not liable. Foreseeability is often the only legal barrier protecting a business from liability. Unfortunately it has proven to be a two-edged sword. The limits of foreseeably was highlighted in McKown v Simon Property Group. On Sunday, November 20, 2005, Dominick S. Maldonado walked into the Tacoma Mall and opened fire on shoppers and mall employees, injuring seven people. Maldonado wore a dark trench coat concealing a MAK-90 rifle and an Intratec Tec-9 pistol, and carried a guitar case filled with ammunition. McKown, an employee at one of the retail stores, tried to stop Maldonado, but was shot and wounded. Simon Property Group owned the Tacoma Mall. Under Washington Law, the Tacoma Mall is liable to McKown...
Failure to Reconvey: Quiet Title Without a Quiet Title Action
What do you do when a seller fails to reconvey the title to property following payment of the loan, then dies? Failure to reconvey puts a cloud on the title that must be quieted. Quiet title actions can be drawn out and expensive. Is there a way to obtain a quiet title without the quiet title action? This article explores four possible tools for obtaining a quiet title outside a traditional quiet title action.