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William F. Bernard

William Bernard’s Answers

180 total


  • What shareholder rights do I have when I see the CEO is doing nothing letting the company going bankruptcy? Thanks.

    I am a shareholder of a private company. The company has cash that will last no more than four months. The CEO is not taking advise from shareholders to cut expense which will be the only way to give him more time to raise fund. We as shareholders...

    William’s Answer

    Corporate directors owe a fiduciary duty of care to all shareholders.The duty of care requires directors to make a business decision based on all available and material information and to act in a deliberate and informed manner (see Note 1 below). First, the board must act in good faith for the company's best interest. Second, they must believe that the actions promote the best interest of the company based on a reasonable investigation of the options available.
    Courts apply the business judgment rule to determine whether the board has properly discharged the duty of care. In brief, the business judgment rule says if directors that acted in good faith and as a reasonable person would have acted, they will not be held liable for unfavorable outcomes. Accordingly, shareholders cannot hold the board liable for negative consequences of a bad decision that was reasonably made.
    More recently, courts have clarified that gross negligence (e.g., failure of directors to properly inform themselves before making a decision), without more, does not constitute a breach of the duty of care (see Note 2). In reaching that conclusion, the court explicitly distinguished between the duty of care and the duty of good faith. Several statutes in Delaware law distinguish between the duty of care and the duty of good faith and, importantly, eliminate director liability for breaches of the duty of care, but not for breaches of the duty of good faith. In the court's view, any definition that makes a violation of the duty of care an automatic violation of the duty of good faith undercuts the legislative intent of these statutory protections.
    You ultimately can bring an action on behalf of the shareholders if you believe your suspicions are provable.
    DISCLAMER: The information provided by WFB Legal Consulting, Inc. is disseminated for educational purposes only, and is not to be construed as legal advice. Do not take any action, postpone any action, or decline to take any proposed action based on this information without first engaging the representation of a licensed attorney at law in your State of residence.

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  • Will a living trust/revocable trust protect the assets of a Medical /nursing home patient.

    My mother will have her house wroth 200K.

    William’s Answer

    Transferring the home into an Irrevocable Living Trust would be key and requires an estate attorney knowledgeable in administering these types of benefits.
    DISCLAMER: The information provided by WFB Legal Consulting, Inc. is disseminated for educational purposes only, and is not to be construed as legal advice. Do not take any action, postpone any action, or decline to take any proposed action based on this information without first engaging the representation of a licensed attorney at law in your State of residence.

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  • How do you prove that money given to a person is a gift?

    My mother passed away 5 mon. ago. She was 85. In going through her records I found that she wrote checks over the years to my brother or on his behalf (for his business) totaling approximately $1,000,000. He is now claiming a substantial amount ...

    William’s Answer

    I agree with Mr. Jones. A loan, gift or early distribution may be factors to consider for purposes of effecting your brother's share to the estate should he be a beneficiary. However, it would be your burden to prove financial elder abuse by filing a Petition in probate court, in terms of actually establishing that the money taken by your brother was not, in fact, a gift, but rather a product of fraud or undue influence. Establishing diminished capacity would undoubtedly require some medical testimony.
    DISCLAMER: The information provided by WFB Legal Consulting, Inc. is disseminated for educational purposes only, and is not to be construed as legal advice. Do not take any action, postpone any action, or decline to take any proposed action based on this information without first engaging the representation of a licensed attorney at law in your State of residence.

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  • I wanted to know if there were some recourse against the previous owner after buying a business and being shown fake numbers

    I bought a business about 9 month ago and my broker really rushed me into it. I didn't have any business experience before and I was poorly advised by her. Now after being at the business for a while I can tell that the books the previous owner ...

    William’s Answer

    You may also have a claim for Fraud in the Inducement if it can be established that the books were intentionally "cooked."

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  • Can HR make you take a lunch break or punish you for not taking one (and you work your 8 hours)

    I work 40 hour weeks (unless OT is needed and approved). One person in HR told us that California law requires employers to provide lunch breaks but does not require employees to take that break. As long as it's offered, employer is fine. If th...

    William’s Answer

    California is one of the few states that not only requires employers to provide breaks, but also requires that employees be paid for some of this time. California requires employers to offer both a meal break and paid rest breaks. California requires employers to provide a 30-minute meal break once the employee has worked five hours. An employer does not have to pay for this time; in other words, meal breaks are unpaid. If the employee’s workday will be completed in six hours or less, the employee may consent to waive (give up) the right to a meal break. An employee who works ten hours is entitled to a second 30-minute unpaid meal break. If the entire workday will not exceed 12 hours, the employee may waive the right to a second meal break. However, the second break may be waived only if the employee actually took the first break. (In other words, an employee may not waive both breaks in one day.) If the nature of the job prevents employees from taking a break from all duties, employers may provide an on-duty meal period. However, this time must be paid, and the employee must agree to the on-duty break, in writing. In 2012, the California Supreme Court decided a big case about meal and rest breaks. The Court found that employers have met their meal break obligation if they relieve employees of all duties for half an hour and allow employees to leave the worksite. Employers may not pressure employees to work during their meal break, but they are not required to police employees to make sure no one works during a break.
    DISCLAMER: The information provided by WFB Legal Consulting, Inc. is disseminated for educational purposes only, and is not to be construed as legal advice. Do not take any action, postpone any action, or decline to take any proposed action based on this information without first engaging the representation of a licensed attorney at law in your State of residence.

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  • After my mothers death her bank has locked all her banking accounts, how do I get them released?

    My sister was taking care of my mothers finances (paying her bill and taxes) when she passed away my sister sent the bank her death certificate and the bank locked all her accounts. My sister was a cosigner on the accounts but now the bank says th...

    William’s Answer

    If not POD accounts, and if under $100,000 in total value, California has a simplified probate process for small estates. To use it, an executor files a written request with the local probate court asking to use the simplified procedure. The court may authorize the executor to distribute the assets without having to jump through the hoops of regular probate.
    DISCLAMER: The information provided by WFB Legal Consulting, Inc. is disseminated for educational purposes only, and is not to be construed as legal advice. Do not take any action, postpone any action, or decline to take any proposed action based on this information without first engaging the representation of a licensed attorney at law in your State of residence.

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  • Should I Trademark or Service Mark my podcast name/brand?

    The main product is the content of my podcast, but I will be offering digital and physical products soon after launch. Also, I'm in California and wondering if it's a good plan of action to first seek Trademark or Service Mark protection here prio...

    William’s Answer

    I would guess that you could register the title of a podcast show just as "MEET THE PRESS" was registrable for "ENTERTAINMENT SERVICES, THROUGH THE MEDIUM OF RADIO AND TELEVISION PANEL DISCUSSION PROGRAM".
    The important thing is that you should contact qualified legal counsel and get help so that you file correctly. Otherwise, you run the risk of wasting your time and money to end up with incorrect or no protection. If your brand is that important to you, it would be better not to be penny-wise and pound foolish. Good luck.
    DISCLAMER: The information provided by WFB Legal Consulting, Inc. is disseminated for educational purposes only, and is not to be construed as legal advice. Do not take any action, postpone any action, or decline to take any proposed action based on this information without first engaging the representation of a licensed attorney at law in your State of residence.

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  • How can I take back custody of my daughter from my sister who was only granted temperary guardianship and is now trying to move

    Wasn't financially stable at the time and now I am need help

    William’s Answer

    What are the specific terms of the temporary guardianship? If terms are being violated, then you should petition the court accordingly. This is really more of a question for a Family Law attorney.
    DISCLAMER: The information provided by WFB Legal Consulting, Inc. is disseminated for educational purposes only, and is not to be construed as legal advice. Do not take any action, postpone any action, or decline to take any proposed action based on this information without first engaging the representation of a licensed attorney at law in your State of residence.

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  • Was my employer right in terminating employment?

    In 6/2013 I was arrested for a crime I committed in 2010. I did not tell my employer of this. In 1/2014 pretrial ruled my conviction as s felony with 3 yrs probation. In 11/2014 an anonymous caller to the company's hotline shared my conviction and...

    William’s Answer

    Employers in California can review job applicant arrest records ONLY if (i) the arrest(s) resulted in a conviction, or (ii) if the applicant is out of jail but pending trial. Otherwise, arrest records are off-limits. Felonies, misdemeanors and arrests are reportable for 7 years. Problematic employees who slip through the hiring process can also create significant legal liability for their employers in the form of lawsuits for negligent hiring, negligent retention, or vicarious liability for employee misconduct.
    That said, there are two federal laws that protect applicants with criminal records, at least in some situations. The Fair Credit Reporting Act (FCRA) addresses the problem of accuracy. Criminal background checks may include errors, such as information on convictions that have been expunged, incomplete information (for example, failing to report that the person was exonerated of a crime or that charges were dropped), misclassification of crimes, multiple listings of the same offense, and even records that belong to someone else entirely.
    The FCRA imposes obligations on employers who request criminal background checks and on the firms that provide them. Employers must do all of the following:
    •Get the applicants written consent ahead of time.
    •Tell the applicant if the employer intends to disqualify him or her based on the contents of the report. The employer must also give the applicant a copy of the report.
    •Notify the applicant after the employer makes a final decision not to hire him or her based on the information in the report.
    Secondly, Title VII of the Civil Rights Act of 1964 protects applicants and employees from discrimination in every aspect of employment, including screening practices and hiring. For example, because arrest and incarceration rates are so much higher for African Americans and Latinos, an employer that adopts a blanket policy of excluding all applicants with a criminal record might be guilty of race discrimination.
    The Equal Employment Opportunity Commission (EEOC) has issued guidance explaining how employers can screen out applicants whose criminal records pose an unreasonable risk without engaging in discrimination. In deciding whether a particular offense should be disqualifying, employers must consider:
    •the nature and gravity of the criminal offense or conduct
    •how much time has passed since the offense or sentence, and
    •the nature of the job (including where it is performed, how much supervision and interaction with others the employee will have, and so on).
    And, the EEOC has said that employers should give applicants with a record an opportunity to explain the circumstances and provide mitigating information showing that the employee should not be excluded based on the offense.
    Perhaps you should see an attorney and ferret out exactly where your circumstances might lead. Good luck.
    DISCLAMER: The information provided by WFB Legal Consulting, Inc. is disseminated for educational purposes only, and is not to be construed as legal advice. Do not take any action, postpone any action, or decline to take any proposed action based on this information without first engaging the representation of a licensed attorney at law in your State of residence.

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  • Are Californians entitled to unemployment benefits if they are also getting a teachers retirement pension from the state of CA?

    If that person moves to another state would there be any change to their eligibility for unemployment benefits while getting a CA teacher's pension?

    William’s Answer

    When you retire, you may decide to keep working while you collect a pension, Social Security or other retirement benefits. Even though these benefits add to your income, they won't typically prevent you from receiving unemployment insurance compensation if you lose your job, as long as you meet all of your state's requirements.
    DISCLAMER: The information provided by WFB Legal Consulting, Inc. is disseminated for educational purposes only, and is not to be construed as legal advice. Do not take any action, postpone any action, or decline to take any proposed action based on this information without first engaging the representation of a licensed attorney at law in your State of residence.

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