Arbitration Agreements: To Use or Not to Use

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Arbitration Agreements:

I have spoken at length with many auto dealers regarding the use of arbitration agreements as part of the sales or leasing transaction with a customer. The question they all ask is, whether or not they should use them. My answer is, and always will be, YES!!!!

I have personally represented clients that DO use these agreements and I have never lost.

Litigious Customers:

Whether or not you believe it, the public views car dealers are viewed with a certain level of suspicion. That suspicion kicks in at the time that the customer first makes contact with your sales team. Unfortunately, it has become a natural phenomenon.

That being said, one of the considerations that a dealer should always keep in mind is that there are consumers out there who are just looking for a reason to sue a dealership. Often, we don’t recognize this and conduct ourselves in a manner that can further exacerbate the situation with customers and give them ammunition to sue the dealer. You can avoid this!

Use a Stand Alone Form.

First and foremost, while many contracts and Buyer’s orders contain an arbitration clause buried in the “small print” that a customer must sign in order to purchase a vehicle, it is still amazing how many dealerships don’t use these agreements at all. This is all fine and good. However, my advice to my clients is: use a stand alone form.

Many of my dealerships simply purchase a form from somewhere like KADA or NADA. While this is a step in the right direction, these form arbitration agreements are not tailored to each individual state. This results in the document having no force or effect. Leading to the agreement being set aside as not complying with state law. You, as a dealer, do not want that!

Useful Tips:

Here are a few tips I can give in crafting an arbitration agreement:

1.     Use a separate document containing the arbitration clause. If, for some reason you cannot use a stand alone document, then make sure the provision in your other documents are present in bold type and  attract the attention of the Buyer. Explain the agreement to them and make sure that there is a separate signature line for the customer to sign within that agreement. This should be separate from any other signature line found in the contract, buyer’s order, etc.;

2.    Make sure that the arbitration agreement specifies where the arbitration is to take place. For example, if in Kentucky, set forth in the agreement that “any arbitration that takes place must occur in _____________ County , Kentucky, pursuant to the laws of the Commonwealth of Kentucky.” If you do not include this language and the lawyer suing you knows what they are doing, the lawyer will assert that the arbitration agreement is void and the court will most likely agree;

3.    MAKE SURE THAT YOU HAVE THE AGREEMENT SIGNED BY BOTH THE CUSTOMER AND THE DEALERSHIP!!! I cannot emphasize this enough. I cannot tell you how many times I have reviewed documents where F&I has not had the customer sign the agreement. If the agreement isn’t signed, it isn’t worth the paper it is written on:

4.   Most importantly, if you are sued, MAKE SURE that your legal counsel asks the Court to compel arbitration in their response to the suit.  If you don’t ask, no one is going to give it to you.

These are but a few tidbits for the dealer to take into consideration when dealing with arbitration agreements. I cannot emphasize enough the importance of using arbitration agreements in your practice of selling or leasing vehicles. The cost it will save is enormous. Like lawyers, a car dealership’s worst nightmare is to have the case be presented to a jury. This has to be avoided if at all possible.  Also remember that standard exclusions in most dealer’s insurance policy will include language excluding claims of fraud. In 21 years of practice, I have never seen a complaint that didn’t include allegations of fraud.

Most dealerships don’t like spending money on document review. I can assure you that the money you spend up front on this issue will save you money on the back-end.

Your job is to sell cars and service for the customer, not be bogged down in litigation.  A few simple things can help prevent you from being bogged down in the middle of a dangerous situation that could have enormous implications for the dealerships.

If you have any questions, please call me at 859-270-1255. Most dealerships take care of the customer. But there are always customers and lawyers looking to make a quick buck and lawyers love to go after dealerships.

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If you find yourself faced with an arbitration question or issue, consider contacting my office.  For more information: http://speddinglawoffice.com/automotive-law/

FAQ’s for the Ignition Interlock Devices

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Ignition Interlock Devices in KY:

This past session the Kentucky State Legislature passed a bill that allows those convicted of DUI, even repeat offenders, to operate a vehicle during their suspension period.  The bill allows for the use of Ignition Interlock devices.

Quite frankly, it has been a difficult process for criminal law practitioners to get a grip on and there has been an enormous amount of inconsistency in the statute’s application and the interaction between the Courts and the Department of Transportation. It seems as though that process is becoming smoother and more uniform from county to county but what I would say to the reader is that you should be patient with your lawyer and the process as he/she works for you to get it done.

As criminal lawyers, we know that the inability to drive after being convicted of DUI has hamstrung clients for many years. The overall concern with the license suspension of a person convicted of DUI is to “get the person off the road”. Well, this device ensures that drivers under the influence are off the road, and at the same time, allows a person to continue to work, take care of their kids and even drive a company vehicle.

Below, you will see information that will explain the law and the process to you. I know no one is anticipating picking up a DUI charge, but just in case….CALL ME. “BAD THINGS HAPPEN TO GOOD PEOPLE”

http://www.kacdl.net/Common/PDFs/Miscellaneous/Ignition_Interlock/KSC_Order_Indigent_Def.pdf

http://www.kacdl.net/Common/PDFs/Miscellaneous/Ignition_Interlock/IID_steps.pdf

http://www.kacdl.net/Common/PDFs/Miscellaneous/Ignition_Interlock/Ignition_Interlock_Q&A%20.pdf

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If you find yourself faced with a DUI offense in a Central Kentucky Court, consider contacting my office.  For more information: http://speddinglawoffice.com/dui/

A Dangerous Ride: What can happen if you get locked up

This is a strange question, but do you ever see a paddy wagon or other prison transport vehicle and wonder what goes on inside of them? Ever see them on TV?  Well if you are one of those who have, or if not and this post makes you wonder, please click on the link below. It is very disturbing. The moral of the story: Don’t  get locked up. But “Bad Things Happen to Good People” so if you do, CALL ME!

http://www.nytimes.com/2016/07/07/us/prisoner-transport-vans.html?smprod=nytcore-ipad&smid=nytcore-ipad-share&_r=0

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If you find yourself faced with a criminal offense in a Central Kentucky Court, consider contacting my office.  For more information: http://speddinglawoffice.com/felonies_misdemeanors/

Another Cardiologist charged with Fraud

Innocent Until Proven Guilty

The Feds have charged another cardiologist with fraud. Does this mean that the cardiologist is guilty? No. Everyone is innocent until proven guilty.

The common perception is that because someone is charged, either by indictment or complaint, that the person is guilty and that the evidence is conclusive that the person committed a crime. This is incorrect.  The old saying among criminal law practitioners is that the government can “indict a ham sandwich,” if they want. While this is an exaggeration,  it does have some merit.

For those who don’t know, when the prosecution presents evidence to a grand jury,  it is part of a secret proceeding.  During the proceeding, as a general rule, only the government presents information for the jury to consider.  The grand jurors consider this information in deciding whether or not to hand down an indictment.

The panel of grand jurors serve for a substantial period of time. One wonders what kind of “camaraderie” develops between the members of the jury and the prosecutor. Ultimately, the prosecution provides the defense with a transcript of what transpired in the “room.” But, is it everything? Hardly! It is merely a transcript of evidence presented to establish probable cause (the lowest standard of proof in the criminal justice system). As a matter of fact, at trial, the Court instructs the  jurors that they are not to consider the indictment as evidence.

Is this admonition effective? One wonders. In my experience, juries try to follow the law and do a good job of it. Whether or not I agree with the verdict, I have always respected the verdict. The jury is in the best position  to make that determination. Every story has two sides and the jury hears both. The simple fact of the matter is that the jury decides which version makes more sense and who presents the stronger case.  The presumption of innocence, in theory, applies until all evidence has been presented and the jury begins deliberations. Again, in theory, that is where the jury must start.

So the moral of the story is that just because you read about an indictment, you should read what follows with a grain of salt.  See the story below.

http://Eastern Ky. cardiologist charged with fraud

Beefing Up Patrols: KSP out in Full Force over the Holiday Weekend

Thinking of drinking and driving this weekend? Think again

But Officer II!!! How Many Points is This???

Points
Kentucky Department of Transportation

Driver’s License Points:

Kentucky Driver Point System  http://transportation.ky.gov/driver-licensing/pages/kentucky-driver-point.aspx

The Kentucky Point System identifies persons that may be habitually negligent drivers. Under the Point System, a driver starts with no points, but accumulates points for various offenses. Upon the accumulation of 12 points (7 points if under age eighteen) within a two year period, a driver’s privilege to operate a motor vehicle may be suspended. Individuals are given an opportunity to meet with a hearing officer prior to any possible suspension. Notice of the following offenses are sent to the Division of Driver Licensing by the courts:
Violation Type Point
Points Violation
0 10 mph or less over speed limit on limited access highway
3 11-15 mph over speed limit on limited access highway
3 15 mph or less over speed limit on any non-limited access highway
3 15 mph over speed limit in CMV (commercial motor vehicle)
0 15 mph or more in CMV (out-of-state conviction-listed as serious offense only-no points)
6 16-25 mph over speed limit on any road or highway
Hearing-Possible Suspension 26 mph over speed limit on any road or highway
Hearing-Possible Suspension Attempting to elude police officer
Hearing-Possible Suspension Racing
6 Commission of Moving Hazardous Violation Involving an Accident
6 Combination of any Two or More Moving Hazardous Violations in Any One Continuous Occurrence
6 Failure to Stop for School or Church Bus
5 Improper Passing
4 Reckless Driving
4 Following Too Closely
4 Driving on Wrong Side of Roadway
4 Changing Drivers in a Moving Vehicle
4 Vehicle Not Under Control
4 Failure to Yield to Emergency Vehicle
3 Stop Violation (electric signal, railroad crossing, stop sign)
3 Failure to Yield
3 Wrong Way on One-Way Street
3 Too Fast for Conditions
3 Too Slow for Conditions
3 Improper Driving
3 Improper Start
3 Improper Turn
3 Failure to Illuminate Headlights
3 Careless Driving
3 Failure to Dim Headlights
3 Improper Lane Usage
3 Improper Use Left Lane/Limited Access Highway
3 Failure to comply with Instructional Permit Requirements/Regulations
3 Failure to yield right-of-way to Funeral Procession
3 Any Other Moving Hazardous Violations
3 Texting while driving
Point System
Points assessed under the Kentucky Point System expire two (2) years from the date of conviction. However, the conviction entry remains part of the driver’s record for a period of five (5) years from the conviction date.
Upon the  accumulation of twelve (12) or more points against a driver age eighteen (18) or older, or 7 points against a driver under age 18,  the Transportation Cabinet conducts a hearing concerning the drivers privileges to operate a motor vehicle.  Failure to appear for the hearing results in a driving suspension for a period of six (6) months for the first such accumulation of twelve (12) points, one (1) year for the second such accumulation of twelve (12) points, and two (2) years for any subsequent accumulation of twelve (12) points within the two (2) year period.
After a hearing, the department may require the driver to be placed on “probation” in lieu of suspension and attend a driver improvement clinic (State Traffic School) approved by the Transportation Cabinet.
Once a driver has been placed on “probation” by the department, he/she shall not be considered for probation again until a lapse of two (2) years from the ending date of any previous probation period granted, whether served or not.

This is an Advertisement: If you find yourself with a traffic ticket, please contact my office, or see my page on Traffic Offenses for more information.

But Officer!!!! What To Do ( and not do) When You Get That Dreaded Traffic Citation

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 Traffic Citation Info

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Payable Traffic Citations

If the citation is marked payable, the amount will be indicated on the citation sheet given to you by the officer. For speeding violations, see the appropriate “MPH Over” for which you were cited for the correct payment amount on the back of the form. If you did not receive a citation sheet, please contact the Fayette County District Court, 150 N. Limestone, (859) 246-2228 for payment information.

  • All amounts listed on the citation sheet are for prepayment only and must be received before the court date listed.
  • Mailed payments should be check or money order made payable to the Commonwealth of Kentucky. (All payments are transferred to the Commonwealth of Kentucky Revenue Cabinet).
  • Payments made in person must be cash, certified check or money order only.

Traffic School

If you have not been assigned to traffic school in the last year, you are eligible to attend on all moving prepayable offenses.

  • Traffic school notices are mailed to the address on your license. If your address is incorrect, you must have it corrected in order to be notified.
  • If you wish to attend, you may mail your citation and a check for the amount listed on the citation sheet before your court date to the address below.
  • Please enclose a note requesting traffic school. (You will be billed an additional amount by the school at a later date.)
  • If you pay in person, you must bring your citation and pay with cash, certified check or money order.

Not Guilty

If you wish to plead not guilty, appear in court on the date listed on your citation.

Equipment Violations

If you are cited for one of the equipment violations listed below, you may bring in proof of repair before the court date on the citation and the charge will be dismissed.

  • If you are cited for the offense codes 0401 or 0435, you may bring in a valid drivers license before the court date on the citation and the charge will be dismissed. (Drivers license must have been valid prior to violation date).
  • If you are cited for one of the offense codes 0405, 0407, or 0424, you may bring a copy of your new registration before your court date. If registration has been expired less than 30 days, the charge will be dismissed. If not renewed within 30 days, you must pay the fine.
  • If you are cited for offense code 0436 you must go to your local drivers license office and have the appropriate information changed, then bring your license to the address below before your court date and the charge will be dismissed.
  • If you are cited for failure to use safety belt in addition to a prepayable offense listed, and the officer marked your citation payable, and you wish to plead guilty to all charges, you may mail your payment to the address below including the additional fine for failure to use safety belt. If charged with failure to use safety belt only, pay amount listed on citation sheet.
  • If you are cited for offense code 0503, you may bring in your insurance policy, or card (IT MUST HAVE BEGINNING – EFFECTIVE DATE) or a letter from your insurance company verifying that you did have insurance PRIOR to the date on your citation.

You may present proof, or make payments (checks & money orders payable to Commonwealth of Kentucky) at:

FAYETTE DISTRICT COURT
150 N. Limestone
Lexington, KY 40507
Telephone: (859) 246-2228

If you fail to respond to your citation, your operators license may be suspended.

Equipment License/Registration Violations

0205 Inadequate silencer
0206 Improper equipment
0209 Vehicle a nuisance
0220 No tail lights
0226 One headlight
0231 Obstructed windshield
0240 No brake lights
0401 No operators license
0405 Improper registration plates
0407 No registration receipt
0424 No/Expired registration plates
0435 No license in possession
0436 Fail to notify D.O.T. change
0503 Fail to maintain insurance

IF NONE OF THIS APPEALS TO YOU, CALL ME! I CAN HELP!

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Last updated: 11/20/2014 9:17:55 AM

What Do I Do at a DUI Checkpoint?

DUI Checkpoint Rules

For many of you, DUI Checkpoints are nothing to be feared. However, there are those unlucky few who encounter a checkpoint in Kentucky. Most of the time, things go downhill even if you have truly had just a “couple of beers”.  Before you go out this holiday weekend, take a look at this story to see how the law is changing on how the police can conduct checkpoints in Kentucky. Happy 4th !speddinglawoffices_dui1

http://www.lex18.com/story/30863283/new-rules-for-roadblocks

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Jury Polling in Crafting a Sentence Under 3553

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Jury Trials:

Today, the USCA for the 6th Circuit in United States v. Collins considered a case wherein the trial judge, at the conclusion of a jury trial, and after the jury returned a verdict of guilty, polled the jury to see what they thought a “just punishment” was for the Defendant. This was a case of first impression for the 6th Circuit. Federal Court criminal practitioners will find this opinion educational. It has been recommended for full publication. The link to the full opinion is found below. It is interesting to note that one of the reasons for his actions was that the trial judge wanted to see what the “community view” was of a “just punishment” and he incorporated that into his 3553 analysis of  the appropriate punishment.

http://www.opn.ca6.uscourts.gov/opinions.pdf/16a0149p-06.pdf

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Criminal & Automotive Law

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