Bona Fide Purchasers For Value

Last Updated on Sunday, 27 August 2023 03:15 Written by Chris Griswold Tuesday, 15 September 2015 01:25

Martin Milner, the star on “Adam 12” from around 40 years ago, died this month.  Although a pretty old TV series, “Adam 12” (a sequel to “Dragnet” which was also created by R.A. Cinader and Jack Webb back in the 1950’s) was sort of ahead of its time (like “M.A.S.H.” was then too) and, in my opinion, lead the way for a lot of the action-packed police based movies and television shows we all now enjoy (which is a pretty timely topic in itself with the well received “Back the Blue” movement we’re currently seeing in relation to a lot of police-aimed violence nationally).  Anyway, “Adam 12” brought up some pretty interesting legal issues from time to time which are worth mentioning now.  See below (and don’t forget to click on my Facebook or YouTube links below to also see my short video on this material).

Bona Fide Purchasers For Value

On one episode, Milner (Officer “Pete” Malloy) responds to a call where a gentleman’s front lawn was stolen which resulted in the beginning of a “theft of real estate” plot.  Milner’s character carefully discerned how, since the grass was still in the form of sod pieces (fresh from the hardware store) when it was stolen (and hadn’t yet grown onto the real estate so as to become affixed to/attached to the real estate), made the matter a theft of real estate which was still personal property (so as to warrant police involvement as a criminal matter, not a trespass/adverse possession claim under civil law).  There’s some Hollywood going on here for sure, but just bear with me!

This brings up something we’ve all heard before, something called a “bona fide purchaser for value,” something we’ll call a “BFP.”  Basically, it’s the hypothetical person that the neighborhood thief (who stole all the grass sod in the episode) ultimately sold the grass sod to – a person who: 1) didn’t actually know it was stolen, and 2)  paid the thief good money for the sod (note:  the actual amount that changes hands isn’t overly important, as long as it’s enough to be a reasonable amount of legal consideration to purchase sod).

The interesting thing about BFP’s, a term also used in criminal law, civil law, and in our uniform commercial code (as relating to the sales of commercial goods between a series of wrong-doers/bad actors which ultimately culminate in a sale of such goods to a BFP), is that the law, in varying degrees, upholds the sale to such BFP (since the BFP would otherwise be out their hard earned money they spent), and/or, indemnifies the BFP from attorneys’ fees, liability, etc… for the BFP’s involvement with/purchase of the stolen merchandise – since the law doesn’t want BFP’s to pay the hard consequences for other people’s criminal/bad acts.  “Protect the innocent” as they’d say.  End of watch….

The information presented within this article is of a general nature and is not intended to be relied upon as legal advice in any particular matter without first consulting qualified counsel.

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Misunderstanding surrounds noncompete agreements

Last Updated on Sunday, 27 August 2023 03:15 Written by Chris Griswold Monday, 6 July 2015 01:56

I sat down with Paula Burkes from The Oklahoman to answer a few questions regarding noncompete agreements.

Q: What isn’t allowed in noncompete agreements?
A: Employers can’t prevent a departing employee from continuing to do what they do within so many miles of the previous employer, nor can previous employers prevent employees from carte blanche working their trade for a certain period of time after their departure.

Q: What is allowed?
A: Prohibiting employees from directly engaging and soliciting existing customers of the employer after they leave that employer. The Oklahoma statute reads: “A person who makes an agreement with an employer, whether in writing or verbally, not to compete with the employer after the employment relationship has been terminated, shall be permitted to engage in the same business as that conducted by the former employer … as long as the former employee does not directly solicit the sale of goods, services or a combination of goods and services from the established customers of the former employer.”

Q: What do employers most often misunderstand about noncompetes?
A: Employers often write into their noncompetes that the employee can’t solicit business from existing customers of the employer for one, two or three years. This time element isn’t a requirement that must be addressed in the noncompete. If an employer wants to provide for one, that’s kind of the employer, but not required to make the noncompete enforceable. Just know that a court is hesitant to agree to enforce your noncompete for an indefinite period of time (and reasonably so).

Q: What is something employers could do to further help with the enforceability of their noncompetes?
A: For starters, quit calling them “noncompetes” in their employment agreements. Use verbiage that more aligns with the statutory protections, such as “No Direct Solicitation of the Established Customers of the Employer After Termination of Employment.”

Non-Competes

Last Updated on Sunday, 27 August 2023 03:15 Written by Chris Griswold Thursday, 18 June 2015 03:44

Employers:  we’re talking about non-compete agreements this month from a different vantage point than you ordinarily see.  See below (and don’t forget to click on my Facebook or YouTube links below to also see my short video on this material).

Non-Competes

There’s an old Italian phrase which I can’t pronounce, it goes something like this:  “…may you have many employees.”  It’s intended as a double-meaning to say that “…while it’s great to have so much business that you need a lot of employees, the task of managing/dealing with all of your employees can be frustrating and a lot of work.”  Go figure.

A lot of employers have been disheartened to learn that the enforcement of a non-compete agreement upon their departing employees is frowned upon (and understandably so, afterall, case law, and the public policy behind such case law, guards against the overly broad, untailored and unreasonable restriction upon a departing employee’s future practice of their profession).   So, what can employers still benefit from having a non-compete agreement?

What isn’t allowed?  Employers can’t prevent a departing employee from continuing to do what they do within so many miles of the previous employer (i.e., radius restrictions); nor can previous employers prevent employees from carte blanche working their trade for a certain period of time after their departure (i.e., time restrictions).  In other words, provided the statute discussed below is followed, the departing employee could leave and simply walk across the street and immediately start working for another employer (or go into business for themselves).

What is allowed? The relevant statute reads as follows:  “A person who makes an agreement with an employer, whether in writing or verbally, not to compete with the employer after the employment relationship has been terminated, shall be permitted to engage in the same business as that conducted by the former employer… as long as the former employee does not directly solicit the sale of goods, services or a combination of goods and services from the established customers of the former employer.”  So departing employees can’t directly engage/solicit existing customers of the employer after they leave that employer.

What do employers most often misunderstand about non-competes?  Employers often write into their non-competes that the employee can’t solicit business from existing customers of the employer for 1, 2 or 3 years.  This time element isn’t a requirement that must be addressed in the non-compete….  If you look above, you don’t see any mention of a time limitation.  If an employer wants to provide for one, that’s kind of the employer, but not required to make the non-compete enforceable.

What is something employers could do to further help with the enforceability/palatability of their non-competes?  Quit calling them “non-competes” in their employment agreements for starters….  Instead, entitle the concept (to be written within the employment agreement) something more in alignment with the statutory protection which is still actually afforded to employers.  Something like:  “No Direct Solicitation of the Established Customers of the Employer After Termination of Employment.”

What My Clients Are Saying

“Just a note to let you know how much I have appreciated your help in the past with lease  preparation and certain lease particulars that the lay person may sometimes not be familiar with. You have demonstrated a good balance of getting past certain points of law that when considering the lease in its entirety, have a tendency to slow the deal process. As I continue to do more business with larger companies, especially public companies, your knowledge of what is relevant and what is not is of great benefit. I also value you not interjecting yourself in the business points of a transaction except when appropriate. I trust that we will be doing business together for many years to come.”
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