by John J. Tollefsen | Mar 8, 2015 | Blog, Securities OR
Although the Oregon securities law statute does not on its face require proof of scienter (intent to manipulate, deceive or defraud), the Oregon Court of Appeals read the requirement into the statute if the theory for relief is fraud on the market. Copy of the decision: 150211-Oregon-v-Marsh-&-McLennan In 2003 the legislature amended the Oregon securities law to provide a good faith defense from securities law violations for secondary violators (one who materially aids or is a control person) and to eliminate the defense for sellers and all those in a fraud on the market case. The court reasoned the legislature did not provide a good a good faith defense for those who material aid (or control the issuer) in a fraud on the market case because it assumed that federal securities law applied. That meant the participants are liable because of their culpable intent to defraud and a good faith defense would not make sense. Even though ORS 59.137 does not require scienter by its terms, that is what it means. In a fraud on the market case, Oregon law is the same as federal law under SEC Rule 10b-5. Whatever one thinks of the Oregon Court of Appeals “correcting” the words of the statute, there is a troubling use of language in the case. The court distinguishes fraud on the market from “direct, face-to-face securities transactions”. This is not a valid description of the distinction. Either type of securities transaction can occur in face-to-face situations. Telephones have been available in Oregon for over 100 years and private issuer transactions are often sold over the phone without any face-to-face meeting. One of the...
by John J. Tollefsen | Oct 16, 2014 | Blog, Civil Litigation OR, Torts OR
Katherine L. Tavtigian-Coburn v All Star Custom Homes, LLC (Or App, October 8, 2014) Decision: 141008-Tavtigian-All-Star-Custom-Homes The implied discovery rule tolls the statute of limitation until the plaintiff knows sufficient facts to bring the action. It is expressed in this manner: The discovery rule is “a rule of interpretation of statutes of limitation that has the effect of tolling the commencement of such [claims] under certain circumstances.” FDIC. v. Smith, 328 Ore. 420, 428, 980 P.2d 141 (1999). Under the discovery rule, the period of limitations is deemed to have commenced from the earlier of two possible events: “(1) the date of the plaintiff’s actual discovery of injury; or (2) the date when a person exercising reasonable care should have discovered the injury, including learning facts that an inquiry would have disclosed.”1Greene v. Legacy Emanuel Hospital, 335 Ore. 115, 123, 60 P.3d 535 (2002) (emphasis in original); see also Kaseberg v. Davis Wright Tremaine, LLP, 351 Ore. 270, 278, 265 P.3d 777 (2011) (“The discovery rule applies an objective standard — how a reasonable person of ordinary prudence would have acted in the same or a similar situation.”). This quote is from Rice v. Rabb, 354 Ore. 721, 725-726, 320 P.3d 554, 556-557 (Or.2014) The statute of limitations for most Oregon causes of action is controlled by ORS chapter 12. The court focused on the language of ORS 12.010 stating that actions shall be commenced “after the cause of action has accrued.” Accrue in this context means “at the time [a] plaintiff obtained knowledge, or reasonably should have obtained knowledge of the tort committed upon her person by [a] defendant.”2Berry v. Branner, 245...
by John J. Tollefsen | Aug 24, 2014 | Blog, Oregon, Securities OR
Fifteen categories of securities transaction are exempt from registration.1ORS 59.035 Transactions are not exempt from the antifraud provisions of the Oregon Securities Law including a harsh aider and abettor liability interpretations that reaches even lawyers doing routine securities work. This summary of Oregon Securities Law exemptions provides general information only. A thorough review of the securities transaction is required to know if the transactions is exempt from Oregon law. Federal covered securities Since federal law trumps state law, federal covered securities are exempt. The Oregon Securities Law defines a federal covered security as “any security that is a covered security under § 18 of the Securities Act of 1933, as amended, and for which such Act provides that the Director may require filing of a notice and payment of a fee.” ORS 59.015(5). The Oregon Securities Law also includes definitions and provisions for federal covered investment advisers, investment adviser representatives, and state investment adviser. ORS 59.015(4), (8)(a), (20)(a). The notice filing provisions for covered securities are contained in ORS 59.049: ORS 59.049(1) provides for notice filing and fees for investment companies (mutual funds, unit investment trusts); ORS 59.049(2) provides for notice filings for all other covered securities except Rule 506; and ORS 59.049(3) provides for notice filings for Rule 506 offerings. Practice Tip: A security may be a “covered security” and simultaneously be exempt under ORS 59.025 or 59.035. In such cases, no notice filing under ORS 59.049 is required. A notice filed under ORS 59.049 expires one year after its effective date.2ORS 59.075(2); OAR 441-049-1021(5). The Director is authorized to establish procedures for renewing notice filings. 3ORS 59.075(3)....
by Justin Tollefsen | Jul 25, 2011 | Blog, Civil Litigation OR, Civil Litigation WA
Small claims courts allow access to the courts at minimal cost. Small Claims Courts Small claims courts are informal and inexpensive means of bringing an action for damages up to $5,000. No attorneys are allowed. There are no appeals. Small claims courts can be useful in some cases even if damages exceed $5,000. Even if attorney fees can be awarded, civil cases are usually settled for a reduced amount because of the risks inherent in litigation. For example, if your claim is $10,000, you may be offered $7,500 in settlement. Your attorney may suggest you take the offer because of the small possibility you could lose the case. If attorney fees to that point are $5,000, your net recovery is only $2,500. You would have been further ahead to file in small claims and settle for $5,000. Washington State Small Claims Courts WA Small Claims information WA-2008-small claims courts brochure Guide to Washington Courts Oregon State Small Claims Courts Oregon Small Claims Information How do I file a small claim case? – from Oregon Small Claims Information Before you sue, try to settle your dispute. When you file your claim with the court, you will be asked to sign a sworn statement called an affidavit stating that you have made a genuine effort to collect on the claim. You can try to settle by phone or in writing. Make sure your offer is simple, clear and unemotional. Remember that all written communications can be used later in the courtroom if necessary. If you have exhausted all reasonable steps to settle the dispute out of court, and you know who...
by John J. Tollefsen | Apr 23, 2009 | Administrative OR, Blog, Employment Law OR, Oregon
Franchisors May Be Employees for Unemployment Insurance Purposes. Issue Preclusion in Administrative Law Franchisor Imputed Employer of Franchisee’s Employee Employment Dep’t v. Nat’l Maint. Contrs. of Or., Inc., 226 Ore. App. 473, 204 P.3d 151, (Or. Ct. App. 2009) (March 19, 2009) National Maintenance Contractors of Oregon, Inc. (NMC) franchisees-janitors performed janitorial services at buildings owned by third parties. The question was whether the franchisees’ s employees were NMC’s employees for purposes of unemployment insurance taxes. NMC is a janitorial franchisor that enters into agreements with building owners to provide janitorial services and informs the owners that the services will be provided by its franchisees. Although NMC often enters into a contract for an entire building, it generally does not assign the building to one franchisee but instead splits identifiable parts of the building among various franchisees. The cost of an NMC franchise is determined by the volume of monthly billing for the accounts that NMC assigns to the franchisee. NMC does not guarantee that the franchisee will receive a specific account, and all accounts serviced under the franchise must be serviced pursuant to an agreement between the building owner and NMC. Franchisees are not permitted to enter into direct contractual relationships with the building owners-a prohibition that continues for 12 months after the termination of a franchise. All franchisees are required to sign a written franchise agreement, and each agreement contains essentially the same terms. Under the agreement, it is contemplated that building owners will pay NMC directly for the janitorial services. NMC then deducts a royalty, an “office management fee,” and a liability insurance premium. If a...
by John J. Tollefsen | Jan 26, 2009 | Blog, Employment Law OR, Oregon, Whistleblowing OR
Oregon limits whistleblower protection No protection for reporting alcohol violations or immigration violations Handam v. Wilsonville Holiday Partners, LLC (Or.App. Jan 28, 2009) As a part of his employment, Plaintiff was licensed to serve liquor under the administrative rules of the Oregon Liquor Control Commission (OLCC). As banquet captain and the morning shift manager, plaintiff supervised several Hispanic employees who were not fluent in English. He discovered photographs showing Hispanic employees drinking champagne and beer during their shift, in violation of OLCC rules. Plaintiff showed the photographs to some managers; they laughed but took no action against the employees. Plaintiff also learned that the Hispanic employees were violating OLCC rules by keeping open containers of alcoholic beverages in the banquet office and refrigerator. Plaintiff reported the alcohol violations to his manager who ignored them but started to treat plaintiff differently by refusing to allow him to take rest and meal breaks, reducing his work hours, making his job harder by reducing his staff, correcting him about things for which he did not correct Hispanic employees, and giving Hispanic employees more hours even though plaintiff had seniority. Plaintiff began to believe that he was being treated differently because he is not Hispanic. Eventually, the manager demoted Plaintiff to waiter. Plaintiff quit his job. He brought this proceeding, asserting, among other claims, that he was constructively discharged from his employment in retaliation for complaining about the Hispanic employees. The general rule in Oregon is that employment is “at will.” That means that, except as otherwise provided by statute or employment agreement, employees may be terminated without notice and for any reason....
