The Law Firm of Bucknam Black Davis PC

Return to Annual Homestead Declarations

Return to Annual Homestead Declarations

Vermont funds its educational system through a property tax system. The “education tax” is imposed on all homestead and nonresidential property, but at differing rates. The basis for classifying a particular property a homestead (and thus being taxed at a lower rate) is dependent upon the owner filing a “homestead declaration” with the Vermont Department of Taxes.

Effective January 1, 2013, property owners in Vermont will again have to file an annual homestead declaration in order to have their property classified as a homestead for purposes of the statewide education tax.  This is actually a return to the system that existed up until 2010, when the Department of Taxes stopped requiring an annual declaration. A homestead declaration filed in 2010 remained valid until the property was sold, the property was no longer the owner’s primary residence or the owner was no longer domiciled in Vermont. When this happened the property owner was expected to file a homestead declaration withdrawal with the Department of Taxes.

The goal was to relieve property owners from having to remember to file the declaration each year. As it turns out, however, property owners are regularly forgetting to file the withdrawal which has apparently caused all kinds of record keeping problems for the Department of Taxes.  In response, the Department has decided that a return to an annual filing requirement is in order.

A “homestead” property is statutorily defined as the principal dwelling and parcel of land surrounding the dwelling, owned and occupied by a resident individual as the individual’s domicile. An individual can only have one “homestead”; second homes and camps are generally not considered homesteads. (Camps can qualify only if it is the  owner’s principal residence.)  Although Vermont law does not require a particular number of days that an individual must occupy the dwelling to qualify as homestead, mere ownership and spending a lot of time at the property is not enough to qualify for homestead status.  The individual must be domiciled in Vermont and the house must be occupied as the individual’s principal dwelling. Spouses and civil union partners who own and occupy a residence together need to file only one homestead declaration.

The necessary form, and more information about homestead declarations, can be found at: www.state.vt.us/tax








Understanding The Visa and MasterCard Class Action Settlement Notice

 In the past few weeks merchants have been receiving a “Notice of Class Action Settlement” related to a lawsuit against Visa, MasterCard and numerous banks.  The purpose of the Notice is to provide information about the law suit and the proposed settlement to members of the “class.” The Notice encompasses 27 pages and can be overwhelming to the non-lawyer reader. Because it outlines a) how members of the class may be entitled to cash payments from Visa and MasterCard and b) certain rule changes concerning surcharges for accepting these cards, the Notice should not be simply tossed in the trash.

The Lawsuit

The case, titled In Re Payment Card Interchange Fee and Merchant Discount Antitrust Litigation has on going in the U.S. District Court, Eastern District of New York, for the past seven years. Plaintiffs brought the case on behalf of merchants who accept Visa and MasterCard and include Payless Shoes, Parkway Corp. and Leon’s Transmission Service, Inc.  They claimed that MasterCard, Visa and approximately 40 member banks violated federal antitrust laws by conspiring together  set interchange fees (fees typically paid by merchants for accepting Visa and MasterCards) and imposed and enforced rules that limited merchants’ ability to steer customers into other payment methods. It is the Plaintiffs’ argument that such conduct forced merchants to pay excessive fees for accepting MasterCard and Visa cards.

The Class

Class action lawsuits are used when a large number of plaintiffs have claims or when claims are being made against a large number of defendants. Usually the plaintiffs or defendants are located in multiple states. The plaintiffs bring suit on behalf of a proposed class of plaintiffs. For the case to move forward as a class action the court must agree that the members of the proposed class have suffered a common injury or injuries, typically resulting from an action on the part of a business or a particular product defect or policy that applied to all proposed class members in a typical manner. The court must also be convinced that the initial plaintiffs have t he capacity and resources necessary to represent the class as a whole. If the court agrees, the class is certified and the initial plaintiffs are authorized by the court to act on behalf of all members of the class.

The initial plaintiffs are required, however, to provide all prospective members of the class  notice of their individual rights throughout the case. One particularly important right afforded prospective class members is the right to “opt out” of the class action and bring their own lawsuits against the same defendants. Typically, if a prospective class member does not affirmatively opt out of the class they will be bound by the results of the class action lawsuit. If someone does opt out, however, they will be bound by the results of their independent lawsuit. You cannot opt out of a class action and then opt back in if your individual case is not successful.

You received the Notice because…?

The parties have, after seven years of extensive litigation (more than 50 million pages of documents were reviewed and over 400 witnesses were deposed) decided that a settlement is in the best interests of both the class and the defendants.  A settlement does not mean that Visa and MasterCard admit any wrong doing. Settling the case means the defendants avoid the risk of a judgment that they must pay more than the settled amount; plaintiffs avoid the risk of a judgment for less money.  The settlement has not yet been approved by the court. Before that court will decide whether to accept the settlement the members of the class must be notified of their rights under the proposed settlement and given the option to opt out.

The records of Visa, Mastercard and the bank defendants show that you are probably a person, business or other entity that accepted Visa-Branded cards and/or MasterCard branded cards in the United States anytime from January 1, 2004 through November 28, 2012.  This makes you a member of the class, if you decide not to opt out.

What are the benefits to the class from the settlement?

The settlement provides two categories of benefits to class members: 1) a cash settlement and 2) changes in the rules and practices Visa and MasterCard can impose and enforce on class members who continue to accept Visa and/or MasterCard.

The cash benefit portion of the proposed settlement requires Visa, MasterCard and defendant banks to establish two funds from which class members may be paid. Combined, the two funds total just over seven billion dollars.  These funds will be used to pay money awards directly to class members, pay for the cost of administering the settlement (if approved by the court) and to cover attorney’s fees and expenses.  A portion of the funds (approximately $1.5 billion dollars) will be held back to cover claims of merchants who chose to opt out of the settlement and proceed in court with individual claims.

The expectation is that merchants will receive an amount equal to actual or estimated interchange fees paid on Visa and MasterCard transactions for the period of January 1, 2004 through November 28, 2012. The interchange fund provides payment (equal to 1/10 of 1% of credit card transaction volume) to merchants who accept Visa and MasterCard during an eight month period starting June 29, 2013.

The actual amount received, however, will be affected by the total value of all valid claims filed, costs of administration and attorney’s fees and expenses approved by the court. Details of how claims will be calculated are expected to be available as of April 11, 2013.

The rule changes, if approved by the Court, will become effective no later than January 27, 2013. Under the new rules, merchants will be able to charge an extra fee to customers who use Visa or MasterCard branded credit cards, may offer discounts at the point of sale to customers who do not pay with MasterCard or Visa. Merchants who operate under different trade names at more than one location will no longer be required to accept MasterCard and Visa at all of those locations. (If operating under one trade name the rule will still be that Visa and MasterCard must be accepted at all locations or none.) Merchants will still be allowed to set a $10 minimum purchase for Visa and MasterCard.

How Do you make a claim?

The Court first has to approve the proposed settlement. If approved, you will eventually have to file a valid claim in order to get payment from the settlement. If you have not opted out of the settlement the claim form will be mailed to you. It will also be available at www.PaymentCardSettlment.com.   Class members with more than one location or franchise may fill out (but are not required to) a pre-registration form which is available at the website.

A “Fairness Hearing” at which the Court will hear arguments as to why the proposed settlement is or is not fair is scheduled for September 12, 2013. How long it will take the Court to decide whether or not to accept the proposed settlement is unknown. The result is that it will be several months before a claim form will be available. In the meantime it is advisable for merchants to pull together information that supports the amount of their claim.

What if I don’t like the proposed settlement?

You have two options: 1) you can object to the settlement and 2) you can opt out.

To object to the settlement you must file a Statement of Objections with the U.S. District Court for the Eastern District of New York. A copy of your statement must also be sent to counsel for both the plaintiffs and the defendants. Your statement must ne postmarked no later than May 28, 2013.  Refer to pages 12 and 13 of the Notice for additional information.

How do you opt out?

You can only opt out of the cash settlement class. The proposed rule changes, if accepted by the court, cannot be opted out of and will apply to all merchants accepting MasterCard and Visa branded cards.

To opt out you must send a letter to the address specified in the Notice. First class mail is acceptable; you cannot opt out by phone, fax, email or online. You should keep a copy of your letter for your records. The letter must provide identifying information about the merchant (including the merchant’s taxpayer i.d. number), specifically state that you wish to opt out of the “cash settlement class in the case called In Re Payment Card Interchange Fee and Merchant Discount Antitrust Litigation.”  Refer to the Notice (pages 11 and 12 for the information that must be included in your opt out letter.)

Your letter must be postmarked no later than May 28, 2013.  If your letter is postmarked after that date it will be considered invalid. You will be bound by the terms of the settlement but you will also remain a member of the Cash Settlement Class entitled to payment. If you file your opt out letter on time you will not be eligible for payment under the terms of the class. You then have the right to bring claims against the Defendants on an individual basis.

What if you do nothing?

If you don’t file a claim form, object to the settlement or opt out you will not receive payment. You will be bound, however, by the terms of the cash settlement. All merchants, whether they file a claim, object or opt out will be bound by the proposed rule changes, assuming the court approves the settlement.

Where can I get more information?

Contact information, copies of the proposed settlement and a list of important dates can be found at www.PaymentCardSettlement.com








Enforcement of Family Court Orders–Vermont and New Hampshire comparison

I have written before of the frustration  I feel for my clients who do not understand why  Family Court judges in Vermont seem to be reluctant to enforce family court orders.  Recently in three separate cases  clients rightly expressed their dismay at not receiving prompt and decisive responses from the court when the opposing party flaunted a specific court order–resulting in financial distress for each client.  I can only caution patience and express sympathy for their plight. New Hampshire Courts, on the other hand, seem to be far more willing to enforce court orders and to punish miscreants in family court.

What is the difference between enforcement of Vermont Family Court orders and those in New Hampshire?  Let’s look  at the rules.   Vermont Family Rule 16 provides that a court can initiate contempt proceedings on its own motion or by motion of a party.  In my 33 years of practice, I have never seen a Vermont court issue a civil contempt proceeding on its own motion. Courts are reluctant to do so because they must not only be impartial, but they must also seem to be impartial to the parties in court.  A judge who issues a contempt citation on its own motion necessarily will seem not to be impartial to the litigant who is the subject of the contempt.

Rule 16 also provides that if a litigant files a motion for contempt, it must be accompanied by an affidavit, and the motion and affidavit, along with the notice of hearing, must be served by sheriff (or by certified mail, if the case involves minor children).  Rule 16 provides that alleged contemnor has at least 15 days to respond prior to a hearing.  This rule applies in both ongoing cases, and in closed cases.

Rule 16 also provides as follows: “The court shall issue an order initiating a proceeding only if the alleged contempt, if proven, would be a clear and substantial violation of a previous order of the court.”   Emphasis added.

Thus the rule not only requires  costly service of process of the motion on the violator, but also requires a high bar for the victim to prove contempt -and allows judicial  discretion on what is  a “clear and substantial”. violation.  As a practical matter, then, the person who is the victim of an opposing party’s defiance bears a heavy burden to bring before the court the violation and prove that the violation is clear and substantial.    Here is where I believe the Vermont rule needs to be changed.   The victim of the violation should not have such a heavy burden to prove that the alleged contemnor violated the order.  Why? Two reasons:  First, because as the survey respondents indicated,  the public believes that following court orders is of the highest priority, and shifting the burden to violators would send a message that the courts take violations of court orders seriously.  Second, when courts are reluctant to enforce orders, victims of violations of court orders must police the violators themselves, compromise their positions, or simply allow the violation to continue because of the expense and uncertainty of filing motions for contempt.  Litigants should not be put in that position.

New Hampshire’s   Family court contempt rule has less onerous procedures than Vermont’s.   Both allow punishment only after an opportunity to be heard, and require motions and affidavits in any post judgment proceeding.   However, if there is an ongoing proceeding, a New Hampshire litigant  need only file a motion with no affidavit, and service need only be by first class mail.  There is no provision for a period of time for the alleged contemnor to answer.

Substantively, there is also a large difference between the rules concerning a finding of contempt.  New Hampshire’s enforcement and contempt rule provides that the court may find a litigant in contempt  “upon a finding of the violation of any Court order”.  Thus the litigant need not prove a “clear and substantial violation”, as he or she must in Vermont;  merely that the order has been violated.

New Hampshire’s rule makes more sense.  First, if litigants are in the middle of divorce or other family law proceedings, any motion may be filed without an affidavit and served by first class mail in either state–except for a motion for contempt in Vermont.  To require  an affidavit and service for contempt motions as if the case were just starting adds an unnecessary burden on the victim of the violation, and provides no added protection for the violator.  Second, New Hampshire’s standard for a finding of contempt comports with how the public feels about violations of court orders.   Americans believe strongly that court orders should be strictly enforced.  After all, as one client said to me, if a court won’t enforce its own orders, who will?

Litigants in Vermont Family Court who are the victims of a violator of court orders deserve to have their orders enforced and to have the violator punished,  without having to shoulder the heavy  burdens  imposed by Vermont Family Rule 16.

 








Parental Rights and Responsibilities in Vermont in the Age of Facebook

 

In a contested hearing held in Vermont Family Court, Mother and Father each request sole parental rights and responsibilities of their minor children.

 Mother brings with her pictures of Father partying, drinking, and in compromising poses with the opposite sex, along with comments about how much he enjoys his night life, all posted on Facebook.

 Father is appalled, first because he doesn’t know how Mother got those pictures, and second because he is afraid that they will negatively impact his case for custody of his children. He had never “friended” Mother on Facebook; so he thought he was safe.

 This scenario is being played out more and more in the courts. Facebook has taken on an important role in many disputes, and lawyers have found Facebook postings can contain information that is useful in a court proceeding.

 For those of you involved in divorce or parentage proceedings regarding parental rights, you can be rest assured that your mutual friends and your relatives—many of whom are your “friends” on Facebook, have taken sides, and some will inevitably take the other parent’s side in any custody dispute.

 In addition, those “friends” who have taken the other parent’s side will be eager to let the other parent know about  your postings on Facebook, especially the ones that make you look like a bad parent.

 The first lesson is, then, for any litigant:  imagine the item you are posting being presented as an exhibit in court—because if it is online, it will likely be easily accessible by your courtroom opponent.  If you would be embarrassed to have a judge see what you are about to put online, do not click “post”.

 Father’s second concern—the impact of the Facebook pictures and commentary on his case—turned out to be groundless. Why? Because under Vermont law, what your nightlife is like is not admissible in evidence unless it impacts your children.

 Title 15, section 667 (a) provides as follows:

 ” Evidence of conduct of a parent not related to the [parental rights and responsibilities] factors in section 665 of this title shall only be admissible for the purposes of determining parental rights and responsibilities if it is shown that the conduct affects the parent’s relationship with the child.”

 Thus if a parent goes out partying, that evidence will only be admissible if it can be shown that the children are neglected or otherwise adversely impacted as a result.

 Facebook and other online social networks can be dangerous for any litigant.  However, if the information is only about a person’s social life not related to the care of their children, the information will not be admissible in any custody action in Vermont.

 

 








Vermont’s Lemon Law

Purchasing a motor vehicle is one of the largest and most important purchases consumers make. Most of us, however, have only a basic understanding of how a car operates or how to keep it in good working condition.  When we purchase a vehicle (particularly a used vehicle) or bring it in for repair we find it necessary to put our trust in someone else. Trust that the car we are buying wasn’t damaged in a previous accident, has an accurate odometer reading, and trust that is in good operating condition.  Trust that the repairs made were necessary in the first place, and that the repair will actually fix the problem.

There are some basic steps consumers can take to protect themselves when it comes to purchasing a vehicle; Read and understand the financing contract before signing it; read and understand any applicable warranty; know the seller and their reputation; take the vehicle to a mechanic of your own choosing for an inspection; thoroughly investigate the vehicle history.  In Vermont there is no time period for returning a vehicle if you change your mind after you signed the purchase contract.

When it comes to car repairs, a consumer can also take a few proactive steps to protect themselves: know the mechanic and, perhaps most importantly, get the repair estimate in writing.  There is no law in Vermont that requires a mechanic to stick to a quoted price if it’s not set out in a signed contract. If you are authorizing the garage to only make specific repairs, put it in writing. Ask about parts (will they be new or used) and labor costs- and have it put in writing.

Taking these few simple steps can often prevent problems down the road.  But there may come a time when you are convinced that either a) the car you just purchased is a “lemon” or b) the mechanic is charging you for repairs that aren’t fixing the problem or don’t seem related to the problem in the first place.   In such cases understanding your rights under Vermont’s “Lemon Laws” can help you save time and money.

“The New Motor Vehicle Arbitration Act”- aka Vermont’s “Lemon Law”

It’s important to know that the only “lemon law” on Vermont’s books applies to “new motor vehicles” which are defined as “a passenger motor vehicle which has been sold to a new motor vehicle dealer or motor vehicle lessor by a manufacturer and which has not been used for other than demonstration purposes and on which the original title has not been issued from the new motor vehicle dealer other than to a motor vehicle lessor.” The law generally does not cover consumers who purchase a used vehicle, whether from a licensed dealer or in a private transaction. (Alternative options available to buyers of used cars are discussed below.) Also excluded from the “lemon law” are tractors, motorized highway building equipment, road-making appliances, snowmobiles, motorcycles, mopeds, or the living portion of recreation vehicles, or trucks with a gross vehicle weight over 10,000 pounds.

Vermont’s lemon law requires that all new vehicles sold or leased in the state conform to applicable warranties. The obligation to make sure that the vehicle conforms to warranties rests on the manufacturer, not the dealer. If the consumer notifies the manufacturer or its agent (the dealership) of a nonconformity that substantially impairs the use, market value or safety of the vehicle then the manufacturer is legally obligated to make whatever repairs are necessary. (The manufacturer can delegate responsibility for the actual repairs to the dealer, but ultimately it is the manufacturer who pays for the cost of repairs.) The law further requires the manufacturer to give the consumer a written a) repair order b) summary of the consumer’s complaint and c) an itemized statement of all work done to repair the vehicle.

In many cases the first attempt to repair the vehicle will correct the defect.  But what happens when multiple repairs are attempted and the defect is still not fixed? That’s where the “arbitration” part of Vermont’s “New Motor Vehicle Arbitration” law comes into play. If, after three attempts to repair the vehicle the problem is still not fixed or the vehicle (after one or more repair attempts) is out of service for 30 or more calendar days, then the consumer has the right to choose between a) the dispute mechanism set out in the manufacturer’s warranty (typically arbitration or mediation before a third party neutral chosen by the manufacturer) or b) the Vermont Motor Vehicle Arbitration Board.  The manufacturer has the responsibility of notifying the consumer of the right to choose, and to provide the forms necessary to start the process. There is no fee required for either dispute mechanism. The choice must be carefully made- choosing one form of resolving the matter precludes resorting to the other option later on.

In either case the arbitration/mediation must take place within 45 days of the manufacturer or VT Arbitration Board receiving notice of the consumer’s request for dispute resolution. During the 45 day period the manufacturer has the legal right to make a final attempt at repairing the vehicle attempt.  If the repair is successful to the consumer’s satisfaction, the arbitration process is terminated “without prejudice”- the consumer can restart the arbitration process if the repair fails during the remaining life of the warranty.

It is important to keep in mind that you cannot stop making lease or financing payments because of the defect and unsuccessful attempts to repair it.  In fact the law specifically bars a person who has stopped making payments on the vehicle from the remedy available under the statute.  Stopping payment could feel like the right thing to do, but in the end it will undermine your legal protections.

The VT Arbitration Board consists of five members and two alternates. By law one member of the board must be a new car dealer in Vermont, one member (and one alternate) must be “knowledgeable in automobile mechanics” and the remaining three must be persons “having no direct involvement in the design, manufacture, distribution, sales or service of motor vehicles or their parts.” The Board conducts a hearing by taking testimony from both sides, along with any relevant documents and testimony from witnesses.  The issue for the board to decide is whether the defect substantially impairs the use, market value or safety of the vehicle even after repairs are made by the manufacturer.  The board must issue its decision within 30 days of the hearing.  The board’s decision can be appealed to the Superior Court, but only for very narrowly defined reasons (including corruption/impartiality/misconduct by the board). Otherwise the decision of the board is binding on all parties involved, and a manufacturer’s failure to comply with a decision constitutes an unfair or deceptive act in violation of Vermont’s Consumer Protection law (which potentially increases penalties against the manufacturer.)

Two forms of relief are available to the consumer who prevails before the board.  The consumer has a right to choose to either a) receive a replacement vehicle of a similar make, model and option accessory package or b) return the vehicle to the manufacturer for a refund of the full purchase price.  A reasonable allowance for the consumer’s use of the vehicle prior to the first repair attempt can be deducted from the refund. (The statute sets out a formula for determining a “reasonable allowance.”) In the case of a leased vehicle, the manufacturer could be required to either replace the leased vehicle or refund all lease payments made minus a reasonable use allowance. The manufacturer is allowed to put the vehicle back on the market for sale, but must affix to a window a conspicuous notice that the vehicle was previously adjudicated as having a serious defect. Notice that the vehicle was adjudicated as having a serious defect must also appear on the vehicle’s title.

In the next article we’ll discuss a consumer’s rights when the car in question is a “used vehicle.”








Vermont’s newest business entity: The “B Corporation”

Effective July 1, 2011, entrepreneurs in Vermont have a new business entity to consider when determining how to set up shop.  The “Vermont Benefit Corporation Act” creates a new corporate model that encourages “for profit” businesses to focus on solving social and environmental problems.
Ordinary corporations have a legal duty to protect their shareholder’s interests above all else. Indeed, corporate law in every state creates a legal cause of action against directors and corporate officers who breach their duty to the shareholders. This duty (often interpreted as a duty to maximize profit) typically results in a narrow focusing of the business mission and operating methods.  Corporate directors and officers are encouraged to minimize or otherwise overlook the potential social and/or environmental impacts of a particular decision if they adversely affect the bottom line.
At the same time, many corporations recognize that being known as a “green” company greatly increases their market potential. (For purposes of this article I am using the term “green” to include both environmental and social considerations.)  Unfortunately, holding a company out as “green” is frequently nothing more than good marketing.  Standards for operating as a “green” company vary from state to state, and from industry to industry.  In many cases there are no standards by which to measure a company’s social and/or environmental impact.  Individuals inclined to invest “green” companies have few tools available to help them determine just how green the company really is.
The Vermont Benefit Corporation Act seeks to address the barriers to corporate involvement in social and environmental issues in a couple of important ways. The first is that a Benefit Corporation’s (also known as a “B Corp.”) legal structure expands corporate accountability to include an obligation to consider social and environmental consequences in decision making.  While maximizing shareholder interests is still a part of the equation, B Corp. directors and officers are not required to make shareholder interest the only consideration. Under the law B Corporations are legally required to consider the broader impacts of a particular course of action.
The Vermont Benefit Corporation Act also addresses the issue of “transparency” in determining just how “green” a business is on a day to day basis.  Benefit Corporations legally obligate themselves to operate in accordance with independent, third party standards. The B Corp. is required to issue an annual “Benefit Report” which sets out (among other information) the corporations public benefit goals, steps taken during the year to meet those goals and an assessment of social and environmental performance that is prepared in accordance with the third party standards.   The law also requires transparency as to the annual compensation paid to each director. Shareholders then have the authority to approve or reject the Benefit Report.
Forming a “B Corporation”
Forming a Vermont Benefit Corporation is similar to forming a traditional Vermont Business (“for profit”) Corporation.  Articles of Incorporation are drafted and filed with the Secretary of State.  To qualify as a “B Corporation,” however, the Articles of Incorporation must specifically include the statement “This Corporation is a benefit corporation.” As with a traditional corporation, incorporators of a B Corporation must still decide whether the business will be a close or general corporation, and further decide the company’s tax status (“S corp.” vs. “C corp.”).   The Secretary of State must approve the corporate name.  A registered agent based in Vermont must be designated for the acceptance of service of legal documents on behalf of the corporation. A fiscal year and the number and class of shares must be designated.  A Board of Directors must be established.
Under the new law an operating Business Corporation can choose to become a Benefit Corporation by amending its Articles of Incorporation to add the statement “this corporation is a benefit corporation.”  A current Business Corporation can also merge with a Benefits Corporation and the “surviving” corporation designated as a Benefits Corporation.  In both cases the law requires certain procedures be used to provide notice to the shareholders.
Corporate Purpose- General and Specific Public Benefit
One of the most obvious distinctions between a Business Corporation and a Benefit Corporation is the statement of “corporate purpose.” Under Vermont law, a Business Corporation is free to engage in any lawful business unless the Articles of Incorporation specifically limits permissible business activity. Benefit Corporations are also permitted to engage in any lawful business activity.  Under the new law, however, B Corporations “shall have the purpose of creating a general public benefit.” This benefit is in addition to- and may be a limitation on- other purposes of the corporation.
A “general public benefit” is statutorily defined as “a material positive impact on society and the environment, as measured by a third-party standard, through activities that promote some combination of specific public benefits.”  In other words, the stated purpose of a B Corp. is to engage in certain activities with the goal of promoting a larger social or environmental goal.
“Specific public benefit” is defined to include providing low income or underserved individuals or communities with beneficial products or services; promoting individual or community economic opportunities beyond the creation of jobs in the normal course of business; preserving or improving the environment; improving human health; promoting the arts ort sciences or the advancement of knowledge; increasing capital flow to other public benefit entities; and the accomplishment of any other identifiable benefit for society or the environment.
Perhaps the most important distinction between a Business Corporation (traditional corporations) and a Benefit Corporation is the fact that the creation of a general and specific public benefit is deemed, by law, to be “in the best interests of the benefit corporation.” As mentioned earlier, the overriding purpose of a traditional corporation is to protect and maximize the shareholder’s interests and directors and officers of Business Corporations have a fiduciary duty to make such considerations the highest priority when engaged in corporate activities. Decisions that do not maximize shareholder interests may result in directors and officers being liable for damages caused by breach of that duty, and as a result a narrow focusing of the business mission and operating methods usually occurs.
By identifying a general and specific benefit as “in the best interests of the corporation” the directors and officers are required to consider more than just shareholder benefit when exercising business decisions. Indeed, the new law requires that directors consider the impact of any board decision not just on shareholders, but also potential impacts on the employees and workforce of the benefit corporation, its subsidiaries and its suppliers, the interests of customers to the extent they are beneficiaries of the general and specific public benefit, the community as a whole, the local and global environment, and long and short term interests of the B Corp. itself  Directors may also consider “any other pertinent factors or the interests of any other group that the director determines are appropriate to consider.” A director is not required to give any one particular interest a priority.  Rather, the law recognizes that to be a truly “green” corporation factors other than shareholder interests must be considered when business decisions must be made.
Corporate “Benefit Director” and “Benefit Officer”
The new Vermont Benefit Corporation law also creates a new corporate directorship and officer.  Each board of directors is required to designate at least one person to be the “benefit director.” In addition to traditional responsibilities, the benefit director is responsible for preparing the “annual benefit report.”  The “benefit officer” is the individual given the authority and responsibility of performing management duties related “to the purpose of the corporation to create public benefit.”
“Annual Benefit Report”
Corporations typically prepare an annual report for shareholders.  The new law requires that the annual corporate report for a B Corp. contain specific information.  The annual report must include: a) a statement of the specific goals or outcomes identified by the corporation for creating general public benefit and specific public benefit during the reporting period; b) a description of the actions taken by the B Corp. to attain the identified goals or outcomes and the extent to which they were accomplished; c) a description of barriers experienced by the B Corp in attaining its stated goals or outcomes; d) specific actions that can be taken to improve corporate performance in attaining identified general and specific public benefit; and e) an assessment of the B Corp.’s social and environmental performance prepared in accordance with third-party standards that has been applied consistently with prior benefit reports (this  requirement is discussed further below); and f) a statement of general and specific public benefit goals and outcomes, approved by the shareholders, for the next reporting period.
Also required in the benefit report is a statement from the benefit director whether, in the opinion of that director, the corporation acted in accordance with stated goals and outcomes in all material respects during the reporting period, and whether the corporate board and directors conformed with the duty of considering more than just shareholder interests when engaging in corporate business during the reporting period.  If the benefit director’s opinion is that the corporation did not act in accordance with stated general and specific public benefit goals/outcomes, or that the board or officers did not satisfy their duties, the benefit director shall include a description of the respective shortcomings.
In addition to information about corporate activity during the reporting period, the annual benefit report must also provide the name and contact information for each director, including benefit directors, the compensation paid by the corporation to each director during the reporting period.  The report must also identify each shareholder owning 5% or more of the shares of the benefit corporation.
In addition to providing each shareholder a copy of the annual benefit report, the law requires the B Corporation to post its most recent report on its website (although information about director compensation must be included in the annual report itself it can be excluded, along with any proprietary information, from the website posting) or otherwise make the report available, free of charge, to any person requesting a copy.
“Third-Party Standards”
Marketing a business as “green” is big business.  The problem for consumers and investors, however, is that there are few-if any- applicable standards by which to measure a company’s social and/or environmental impact. The standards that do exist may vary from region to region. Vermont’s Benefit Corporation Act seeks to address this concern by requiring Benefit Corporations to assess- and publish- its performance in attaining general and specific public benefit goals by using third party standards.  The statute defines such standards as “a recognized standard for defining, reporting and assessing corporate social and environmental performance.”
The third-party standard must be developed by a person independent of the corporation (no material relationship with the corporation or any of its subsidiaries) and “shall be transparent” by making available to the public the factors considered when measuring the performance of a business, the relative weight given to each factor and the identity of the person who developed and controls changes to the standards and the process by which those changes are made.
The development of “third-party standards” is itself a rapidly developing industry. The present leader in third-party validation is “B Lab,” a Philadelphia based alliance of B Corporations that have promulgated uniform standards in four general categories: governance (how the business is managed), community relations and impact, environmental impact and beneficial business models (how the business is structured.) B Lab provides a thorough assessment of a B Corporation’s operations and those that meet the rigorous standards are given a “B Corp. certification.”  (Vermont’s law does not require “certification,” but only that third- party standards be used to regularly assess the company’s performance. B Corporations are free to choose among available third-party standards, so long as the standards used meet the transparency requirements.)
 Right of Action
The new law provides that the duties of directors and officers and the general and specific public purpose of B. Corps. are enforceable only through a “benefit enforcement proceeding.” This newly created right of action can be commenced or maintained only by shareholders, a director of the corporation, a person or group of persons owning 10% or more of the equity interest in any entity of which the benefit corporation is a subsidiary or any such person as may be specified as having a right of action in the B Corp.’s Articles of Incorporation. The general public does not have a right of action against a benefit corporation that fails to live up to its mission.
Conclusion
According to the “Certified B Corporation” website there are presently 439 B Corporations in 11 states (plus the City of Philadelphia) across 54 industries generating 2.18 billon dollars in revenues. Given Vermont’s reputation of having a socially and environmentally consumer base, is reasonable to assume that we will see a blossoming of Vermont B Corporations over the next few years.
For more information on B Corporations, check out these links:








Containing your attorneys fees costs in Vermont and New Hampshire family courts

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Litigation legal services are expensive, but if you are involved in a family court case in Vermont or New Hampshire, you have options that can reduce the cost of litigation while still receiving legal assistance. Both Vermont and New Hampshire have made it easier for parties to represent themselves in family court while having the assistance of an attorney at various times during the litigation:

  • “Unbundling” legal services: In the past, if a lawyer was representing a client in family court, the lawyer was required to represent the client in all aspects of the case. This sometimes resulted in duplication of services and additional unneeded legal expenses. For example, while a client may need a lawyer to represent him or her in a child custody matter, the client may not need the lawyer to assist in child support issues. However, the rules used to require the attorney to be present at all hearings and proceedings. Now Vermont Family Proceedings Rule 15 (h) and New Hampshire Family Division Rule 1.19 allow an attorney to file a limited appearance, provided that the requirements of VRFP Rule 15 (h) or NHFDR 1.19 are met. Thus if you believe you need an attorney’s services for only part of your family court proceeding, and are able to represent yourself in other aspects of the case, your attorney can file a limited appearance for the part of the case where you need legal assistance. 
  •  Obtaining an attorney’s advice while representing yourself:  Most attorneys will be glad to give you advice about your case without requiring you to hire them to represent you in court. You can seek advice during any part of the proceedings, but I believe it is particularly important to talk an attorney about any agreement you have reached before signing the agreement. An attorney can help make sure the language in the agreement properly expresses what you agreed to. More importantly, an attorney will often be able to point out areas which may not have been covered, or pitfalls you may not have thought of. Attorneys can also assist you in drafting pleadings or agreements, but remember in New Hampshire, you must notify that court that a New Hampshire licensed attorney drafted the court pleadings. 
  • Educating yourself:  Whether or not you hire an attorney, it is good advice to go to the Vermont or New Hampshire Judiciary pages to obtain information. Both the Vermont Judiciary Website and the New Hampshire Judiciary Website have good information for parties involved in family court litigation, and litigation forms that you can fill out yourself here  and here.
  • Obtaining and organizing financial documentation: Whether you are represented by an attorney or representing yourself, gathering and organizing financial documentation is a sound way to reduce attorney time and costs. In our office, if we are representing clients in Vermont Family Division, we provide the client with Form 813 A and 813 B, the financial affidavits required by the Vermont Family Court, and a checklist of documents we need—generally documents supporting the disclosures on the 813 forms. Vermont Family Court now only requires tax returns, pay stubs, and health insurance information—information necessary for child support determinations. We ask clients to provide the additional documents because they are necessary to determine property division and spousal maintenance. In New Hampshire, the Family Division requires a financial affidavit form and in the near future will also be requiring “Mandatory Initial Self Disclosure” (Family Division Rule 1.25A)  which will require the same type of documents this office already requests our clients provide to us. Obtaining and organizing financial documents may seem onerous, but it will save time and money because you will need that information whether there is a contested hearing or a negotiated settlement.








Frequently asked questions about wills

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  • Where does my property go if I do not have a will?

If you do not have a will, the state will distribute your property by what is called the laws of intestacy.

Each state’s intestacy laws are different.

For example, In New Hampshire, the first $250,000 of your estate, whether real or personal property, would go to your spouse. After $250,000, your estate is divided between your spouse and your children.

In Vermont, only one third of your estate will go to your spouse if you have two or more children; and two thirds of your estate will be divided up among your children.

If you are not married and have no children, in both New Hampshire and Vermont, your estate will go to your parents.

In neither state will your assets go to any unmarried partner who is living with you.

The intestacy laws will distribute your property the way the State believes it should be distributed, not the way you want it distributed.

  • Do I need a will to take care of my minor children?

Yes. If you die and have minor children, the other parent will automatically be awarded custody of your children, even if you are no longer married to him or her and custody was awarded to you. However, a will with a trust provision will ensure that the person you designate will be in charge of the property and income that your children receive at your death. In addition, if your children have no other fit parent surviving, the guardian for your children whom you designate in your will, if he or she is fit, will be appointed by the court as guardian.

  • Do I need a will to make sure the state does not take my assets?

Generally, no. The only time the state would take your assets is if you have no relatives. The intestacy laws in Vermont provide that your relatives as distant as third cousins will inherit your assets; and in New Hampshire, relatives as distant as first cousins will inherit. Therefore, unless you have no relatives, there is no danger that the state will take your property if you do not have a will.

  • Can a will protect my estate from taxes?

Yes and no. A simple will does not protect your estate from federal taxes. You will need a more complicated estate plan, including a will, to minimize your tax burden. As of 2009, there
is no federal estate tax on any estates valued at less than $3,500,000, so most people do not need to be concerned about tax planning. However, the estate tax laws may be changed dramatically by Congress in the near future; therefore it is important to talk to your attorney about those changes.

  • Are there other benefits from executing a will?

Yes. You can designate an administrator in your will, and the court will appoint that person. You can also provide the administrator with more powers than allowed under the probate statutes.

In addition, you can set up a trust in the will which will control how your property is managed after your death.

Finally, you can make it easier for your heirs to divide up your household and personal effects. This is often the least valuable property in your estate, but is often the property that your heirs will more likely argue over because your personal effects have sentimental value. Giving your administrator power to make a final determination as to how to divide such property can save everyone time and emotional heartache.

  • Are there any disadvantages to making a will?

Yes. Once you make a will, its provisions will govern how your property will be divided after your death, no matter how your circumstances change. There may be deaths or divorces in your family; you may have a child who has special needs, your assets my have grown so that tax planning is necessary. Finally, the laws may change so that your will does not protect your assets as you planned when you executed the will. A good example is the tax law, which is slated to change dramatically in the next few years. It is best, then, to review your will every three years, and every time there is a major change in your family circumstances or assets. Your lawyer should be reminding you to update your will every few years, or whenever there is a major change in the law.

  • Where should I keep my will?

You should keep it where your heirs can find it immediately after your death. For example, a safe deposit box or a locked safe is not a good place for a will if your heirs do not have access to the box or know where to find the key to the safe. So it is best to plan to put your will in a safe place that will be accessible to your heirs after your death. Your attorney may offer to hold your will in his or her office. In that way, the attorney can notify your heirs at your death as to the location of the will.

  • Do I need an attorney to help me with my will?

Generally, yes. While there are good online programs for drafting wills, a lawyer will review in depth your assets, your wishes, and talk to you about any potential pitfalls. A will is drafted to take into account, as much as practicable, what may happen in the future, and a review by a lawyer of your circumstances will can better help you predict and take into account any future contingencies when drafting your will.

In addition, a lawyer will be able to let you know if you need more complicated estate planning for either tax purposes or Medicaid planning. Finally, most lawyers will safeguard your will, and remind you of any legal issues that may come up in the future that will affect your will.








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