Memo from Uncle Sam: Die Hard 4 wasn't all that impossible; let us help you

Monday, August 30, 2010 by Chris Stephen
Another post that doesn't quite fit neatly into Indiana Internet litigation or privacy law, but that intrigues me.  BusinessWeek, passing along a Tim Greene article from NetworkWorld (found here: www.networkworld.com/nwlookup.jsp), is reporting that the U.S. military has issued an essay in which it urges its expertise in defense be put to use in protecting civilian networked infrastructure, such as power grids, financial institutions, etc.  The essay from Foreign Affairs sets out the concept that our military networks are probed and scanned by outside sources millions of time a day by enemies looking for weakness and access.  The Pentagon fears that the civilian cyberstructure could also be at risk from cyber-terrorism and that the U.S. military can help by using its tools to protect those necessary networks.  

This concept imposes a sense of fear and foreboding in your friendly neighborhood technology legal counsel.  On one hand, I can recognize the importance of protecting those networks.  If Bruce Willis and Justin Long taught us nothing, it is that a "fire sale" can cripple this country (and big props to Kevin Smith for his part in that flick).  Other than our Amish citizens, we, as a people, rely so heavily on our networks that we need to protect them.  However, the idea of the government and military putting their hands into the inner workings of those civilian networks also scares the heck out of me.  There are too many "technology deciding it knows what's best for us" movies for me to not worry about increased presence of government and military in our cyberworld.  

I guess, the reality is that I have no answer to this issue, but I thought it was interesting.  Like many of the questions we see arising in the cyberlaw realm, the answer to military intrusion in your civilian networks is "how much are you willing to give up in order to be safe?"

Never underestimate your staff, but rather, allow them to envision and strive for excellence

Sunday, August 22, 2010 by Chris Stephen
The ACH litigation team had its first ever (as far as I'm aware) litigation retreat this weekend, and as I reminisce on our time, I am struck by the realization that to be a successful business, you have to allow your team to envision and strive for excellence with you.  This weekend we had some great discussion and "vision-casting" on the areas of privacy litigation, Indiana probate litigation, business law, Internet litigation, banking law, SaaS litigation, and several other areas where we are already working and where we can work more, and throughout the discussions, I was struck again and again by how fantastic and forward-thinking everyone on our team is.  The moral of the story to me is that you, as a business person, have surrounded yourself with excellent people.  You need to listen to them and see where they can take your company.  It doesn't matter what "position" they have in the company because everyone has ideas.  Your goal as a manager should be to foster those ideas and push them to verbalize and realize those ideas.  Otherwise, you will achieve nothing but stagnation.  However, if you allow your team to envision with you, not only will you get some great ideas, but they will also own a piece of your business' future.  They will have a stake in your game.  Allow them to participate and purposefully embrace their ideas of the company and you can't avoid great results.   

Firm Joins Innovation Summit as a Sponsor

Wednesday, August 11, 2010 by Lainey Scheetz

FIRM JOINS INNOVATION SUMMIT AS SPONSOR

 

For the second year in a row, the firm committed to this year’s Innovation Summit as the Plenary Panel Sponsor. 

 

This annual event brings together entrepreneurs, executives and policymakers for learning, dialogue and debate on the central challenge of today’s economy – turning today’s ideas into tomorrow’s business breakthroughs. The Summit includes keynote speakers, breakout sessions on a variety of innovation related topics, and dozens of trade and industry booths. 

 

Innovation Summit will feature iconoclastic technology writer Nicholas Carr as the keynote speaker, author of the recently released book, The Shallows: What the Internet Is Doing to Our Brains. Agree or disagree with him, Carr makes us think – and that’s the first step towards innovation.

 

“There is no other event in the city that brings together this unique blend of people. The end result is sure to be an unprecedented amount of thought leadership in the innovation realm. Alerding Castor Hewitt, LLP could not be more excited to be a corporate partner,” comments David Castor, founding partner of Alerding Castor Hewitt, LLP.  

 

Annual attendees include: Chief Executive Officers, CIO, CFO, CTO Executives, University Presidents, Association Leaders, Marketing Executives, Leading Educators and Scientists & Engineers.

 

 

Firm at a Glance:

Practice Areas: business counsel, licensing and technology legal counsel, software litigation

Headquarters: 47 S. Pennsylvania St., Suite 700

Founded: April 2007

Partners: Michael Alerding, David Castor, Brian Hewitt

Employees: 17, nine of them attorneys

Clients: 300, including Compendium Blogware, Iasta, First Merchants Bank, Indiana Bank and Trust, MainSource Bank

ALERDING CASTOR HEWITT, LLP CLIENT NAMED 10TH FASTEST GROWING PRIVATE COMPANY IN INDIANA FOR THIRD TIME

Friday, July 23, 2010 by Lainey Scheetz

FOR IMMEDIATE RELEASE
July 23, 2010
Contact: Lainey Scheetz
317.403.9012
lscheetz@alerdingcastor.com

ALERDING CASTOR HEWITT, LLP CLIENT NAMED 10TH FASTEST GROWING PRIVATE COMPANY IN INDIANA FOR THIRD TIME

Indianapolis, IN – Iasta, the leading provider of eSourcing software and solutions, was titled as the 10th Fastest Growing Private Company in Indiana for 2010 by the Indianapolis Business Journal (IBJ).  A third time honoree, Iasta boosted its three-year growth rate at 134 percent.

The report profiled Iasta’s founding’s, current offerings and future outlook.

The IBJ ranks companies by their revenue growth over the last three consecutive years, which must exceed $1 million annually.  In 2009, Iasta ranked 17th and in 2008 they ranked 14th.  The award is based on revenue growth of the last three consecutive years.  Iasta has thrived in a market where many others have been forced to make budget cuts and layoffs.  “We’ve established a lot of credibility and there’s a lot of growth yet to be had,” said Bush.

Iasta experienced very rapid growth in its younger years at 80 to 90 percent a year.  These days, the company still grows at 30 to 40 percent annually.  Bush attributes the success of Iasta to flexibility and high quality in both software and services.

Dave Castor has represented Iasta as general counsel since 2002. 

Firm at a Glance:

At Alerding Castor Hewitt, LLP, the attorneys focus on business law, litigation and technology law services.  The firm has unique experience in niche markets such as software and technology licensing, e-commerce and Internet law and international business law. 

For additional information, please visit www.alerdingcastor.com.


 

Alerding Castor Hewitt Proud Sponsor of Adoptions of Indiana (AD-IN) Annual Golf Outing

Monday, April 26, 2010 by Lainey Scheetz

You might wonder why an Indiana law firm with a practice in several areas of technology (Indiana Internet Litigation, SaaS Legal Consulting to name just two) finds itself supporting a golf outing that raises money for adoption?  "As a firm that prides itself on supporting the local community, we don't always align our charitable giving strictly to serve our immediate demographic.  There are many organizations deserving of our support and Adoptions of Indiana is certainly one of them," comments Dave Castor, Founding Partner and lead counsel in the firm's involvement with Internet-based companies. 

On Tuesday, August 31st Adoptions of Indiana will host it's third annual golf classic at the Golf Course of Indiana.  Now in its third year, this event looks to build upon past successes and top past earnings to ensure that critical programming continues for birth parents and adoptive families alike.

Adoptions of Indiana was founded in 1995 by professionals in the fields of mental health and social work whose lives were personally touched by adoption. ADOPTIONS OF INDIANA is a not-for-profit 501(c)(3) corporation that is licensed by the State of Indiana as a child-placing agency.

The agency is a member of the Joint Council on International Children's Services, the North American Council on Adoptable Children, and Indiana’s Adoption Coalition. In addition to being licensed in the state of Indiana, they are also licensed and approved by the state of Connecticut to assist their families who are adopting children born in Indiana.

Adoptions of Indiana works with highly respected and well established adoption agencies and adoption attorneys throughout the United States. Our agency provides domestic and international adoption services to Indiana residents.

 


Venue Selection Clauses - The Hidden Danger (Part 1)

Sunday, March 14, 2010 by Chris Stephen
Indiana Privacy LitigationYour friendly neighborhood technology legal counsel here to discuss with you the hidden dangers lurking in your unassuming (and unread) terms of service agreements.  Janet Croswell, one of our fabulous tech lawyers, posted back on February 10, 2010 about the pitfalls that businesses face related to the clickwrap agreement (here's a link for those playing along at home  blog.alerdingcastor.com/blog/alerding-castor).  Now for those of you scratching your head and wondering what a "clickwrap agreement is", the answer is simply those pesky agreements that we all have to agree to in order to do anything on-line and that none of us actually read.  I'm fascinated by this stuff and I'll probably only read one in twenty that I ever click past.  They are the superfluous hurdle that we fly past in order to enjoy our Internet-y goodness.  But, as Janet so wonderfully pointed out, these hindrances are actually contracts to which we are binding ourselves, or worse, our companies.  "What" you exclaimed under your breath, "You mean this is binding on me?"  And I'm forced to tell you, "yes".  Which leads to the inevitable "so what" question. 

The "so what" in this scenario is that you are likely locking yourself into a venue-selection provision.  I know the phrase sounds like you are making the decision of whether your play Deer Creek or Red Rock during the next summer tour cycle, but actually you are significantly limiting your options from a litigation standpoint.  Venue is the place where a lawsuit can be brought.  Obviously, you would like to bring a lawsuit near where you are located and where there is law that favors your position, but if you agree in contract that it will be brought in Poe-Dunk, North Dakota, well then friend, that's where you are headed. 

Recently, several courts have concluded that venue selection provisions contained within a clickwrap agreement are enforceable.  The most recent cases involve the venue-selection provision in the Google AdWords contract.  In TradeComet.com v. Google, a New York District Court found that the language from Google that

"THE AGREEMENT MUST BE CONSTRUED AS IF BOTH PARTIES
JOINTLY WROTE IT AND GOVERNED BY CALIFORNIA LAW EXCEPT
FOR ITS CONFLICTS OF LAWS PRINCIPLES. ALL CLAIMS ARISING
OUT OF OR RELATING TO THIS AGREEMENT OR THE GOOGLE
PROGRAM(S) SHALL BE LITIGATED EXCLUSIVELY IN THE FEDERAL
OR STATE COURTS OF SANTA CLARA COUNTY, CALIFORNIA, USA,
AND GOOGLE AND CUSTOMER CONSENT TO PERSONAL
JURISDICTION IN THOSE COURTS."

required the dismissal of an action brought in New York court.  The District Court went through a very succinct analysis of the standards for enforcement of a venue-selection provision and then made its determination of both (a) the enforceability of this agreement and (b) the reasonableness of enforcement of this provision in the instant case. 

Another court reached the same decision in Flowbee International, Inc. v. Google, again looking at this venue-selection provision in the Google clickwrap agreement.  In that case, the District Court ordered transfer rather than simply dismissing the action, but it nevertheless did transfer the case to the Northern District of California. 

These two cases illustrate the fact that when you click on that little box, you might be shoehorning yourself into a court that you don't want.  To date, most courts have applied the same analysis to as these courts did to determine that you, my friend, are stuck.  In fact, the District Court for Southern Indiana reached this decision in Appliance Zone, LLC v. Nextag, previously cited by Ms. Croswell.  

Now if you're sitting there wondering, "Ok, Mr. Bigshot at the information technology law firm,  what is a poor web-browser and member of the 21st century to do?"  My only answer is:  tune back in to Part 2. 

Rules of Funding

Thursday, March 11, 2010 by David Castor
US Private EquityThere is a good article on the Mercury News Blog today on How dot-com start-ups have changed 10 years later.  The article addresses the maturity of both technology companies and US private equity investors over the last decade.  It is an interesting read.

There has been a lot of activity in angel investor groups and venture capital investments in Indiana technology companies over the last few months.  2010 has definitely started with a bang at Alerding Castor Hewitt where we have helped five companies secure funding this calendar year.  I am traveling with two technology clients in a couple of weeks to meet with investors in Southern California. 

Still, the same rules apply when seeking funding.  An early stage company looking for funding must prove:

1.    Management Team (including expertise in field and proven financial and leadership ability)
2.    Market Opportunity (including the need, ability to meet the need and scale)
3.    Investment Opportunity (is the expected return worth the risk of investment)


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Alerding Castor Hewitt, LLP is an Indianapolis law firm focusing on business law, information technology law (including SaaS law and legal technology consulting), private equity consulting, and business and Internet litigation.

2010 Top 50 Indiana Super Lawyer: Brian Hewitt

Thursday, February 18, 2010 by Janet Monroe
Indiana Probate Litigation, Indiana Entrepreneurial LawCongratulations are in order to Brian Hewitt, the newest parter of Alerding Castor Hewitt, LLP, who was recognized this week as one of Indiana's 2010 top 50 Super Lawyers.

Brian concentrates his practice on estate, trust, and guardianship planning, administration, and litigation; and mediation and business law.

He is a Certified Estate Planning and Administration Specialist, a Fellow of the American College of Trust and Estate Counsel, and a member of the Probate Litigation Committee of the American College of Trust and Estate Counsel.  

Brian has spoken widely at continuing education seminars on estate planning, business succession, litigation, and mediation.


Congrats Brian! 

We are proud that you have chosen to join us as a named partner of Alerding Castor Hewitt, LLP, an Indianapolis law firm focusing on business law, information technology law (including SaaS law and legal technology consulting), private equity consulting, and business and Internet litigation.


ALERDING CASTOR HEWITT LLP PARTNER NAMED TO FORTY UNDER 40

Thursday, February 4, 2010 by Lainey Scheetz

FOR IMMEDIATE RELEASE
February 4, 2010
Contact: Lainey Scheetz
317.403.9012
lscheetz@alerdingcastor.com

ALERDING CASTOR HEWITT LLP PARTNER NAMED TO FORTY UNDER 40

Indianapolis, IN – Alerding Castor Hewitt LLP is pleased to announce that Michael Alerding, a partner at the firm, has been named to the 2010 Indianapolis Business Journal’s Forty Under 40 list.  The list recognizes local business and professional leaders who have achieved success and excelled in their field before the age of 40. Those honored have demonstrated leadership, initiative and dedication in pursuing their careers, and are likely to continue to achieve in the future. 

David Castor, partner at the firm states, "Michael has served the professional and civic community of Indianapolis for many years.  I am proud to be a partner of his as he brings with him a strong commitment to our vision while balancing that with a solid family life.  Michael represents what we should all strive for - personally and professionally."

Prior to forming Alerding Castor Hewitt, LLP, Alerding was a partner at Sommer Barnard PC and Bingham McHale LLP. 

A 1989 Cathedral High School graduate, Alerding received a bachelor’s degree in journalism from Indiana University before pursuing his law degree at IUPUI.  He was admitted to the state bar in 1997, the same year he graduated with honors. 

Alerding is a husband and a father of three young daughters.  “I don’t need to make a whole lot of money nor do I want to necessarily,” he said.  “The desire to feed my family is what gets me out of bed in the morning, and everything I do is for the sake and purpose of my family.”

Alerding Castor Hewitt, LLP is an Indianapolis law firm focusing on business law, information technology law (including SaaS law and legal technology consulting), private equity consulting, and business and Internet litigation.

 

Check Out The Butler Accelerator

Thursday, December 24, 2009 by David Castor
Entreprenurial Law - Accelorator ProgramClosing in on the end of 2009 I have to say that I am quite pleased with the commitment Indiana showed this year to be a State that supports and promotes innovation, entreprenuership and business growth.

This week I had breakfast with Larry O'Connor, Executive Director of Butler University's Business Accelerator.  Larry is a former CEO of Bank One Indiana.  Following his "retirement", Larry became CEO of The IndianapolisMuseumm of Art, and recently took the position to lead theAcceleratorr program.

On the program's website, Larry describes theAcceleratorr as follows:

Operationally, the Accelerator is a consulting business designed to serve middle market companies in Central Indiana. Teams of professional consultants, faculty and students work directly with these companies - helping them to grow and simultaneously providing a living laboratory in which undergraduate and MBA students learn and experience real business problems and situations.

While Butler is continuing its work with mid-market companies, 2009 also showed growth of incubator programs and the birth of new angel investment groups in Indiana.  As an entrepreneurial law / private equity attorney, the health of these groups means a lot to me in terms of support and growth of my clients.

2009 was a strange year for businesses.  Private capital was hard to come by due to economic constraints.  Lending was tight.  The corporateenvironmentt seemed to be mired by corporate fraud (Madoff, Durham).  Despite all of this, Indianapolis proved to be a great place for businesses to launch and grow. 


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Alerding Castor Hewitt, LLP is an Indianapolis law firm focusing on business law, information technology law (including SaaS law and legal technology consulting), private equity consulting, and business and Internet litigation.

The Danger of the Autofill

Friday, December 11, 2009 by Chris Stephen
Interesting case (2009 WL 4261214) came across my desk.  Not related to Indiana Internet litigation, but interesting conundrum.  The basic facts are that client wanted to send e-mail response to his attorneys.  In adding the second attorney, he inadvertently sent it to a third party.  Through several forwards, it ends up at his opposing counsel's desk.  That counsel wants to use it in litigation.  Ultimately, the Idaho District Court found that it was an inadvertent production and made the opposing counsel give it back. But, the case still highlights the problem.

We use autofill in everyday life without ever thinking about it.  But in litigation in general, the attorney-client privilege must be cherished and defended.  As a technology counsel, I deal with clients that are more computer and e-mail savvy than some you may find.  My clients live on e-mail.  Frankly, I live on e-mail.  And this creates the needs for an additional level of vigilance that is necessary.

So in the immortal words of Hill Street Blues (and who didn't love that show) "Be safe out there".  And remember to double check your e-mail recipients.  

Good Metrics

Monday, November 23, 2009 by David Castor
What are your metrics for business success?  I attended a non-profit board meeting this past week where the directors were working through this question  - "How do we measure success?" 

A common metric that was discussed was # of volunteers in the organization in ___ years.  Although this metric does measure growth, it does not measure the quality of growth.  What if the volunteers are under committed, under trained or just plain lousy at their job?  You may meet your metric but find that your organization is under serving the community, or worse, frowned upon by the community it is trying to serve.

Similar metrics are common in business plans where I often see # of customers as a metric for growth.  I also saw this problem with the prior administration of Indiana's 21st Century Fund where creation of jobs was the key metric for grant opportunities.  The problem there is that there are good jobs and bad jobs - purely measuring # of jobs does not distinguish between the two.  I could create tons of hourly pay jobs today if I wanted, but those jobs would be low wage and temporary.  Not the type that would ultimately benefit the State.  In short, the metric is not a good measure of success.

The difficulty with metrics is that they can come in just about any form you can imagine.  They are simply a way to measure growth.  The key is to tie them in with the ultimate goals of your organization.  Most companies do not want growth at the cost of profitability.  Personally, I would rather run a small shop with higher profit than a large shop with smaller or no profit.  

So, here are a few poor and good metrics for successful business growth:

Poor metrics:
# of employees
# of customers
# of square feet of office space

Good metrics:
Net Profit at $_____, based on Revenue of _____.
% of customers at ___ % margin
___% profitability margin per employee


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Alerding Castor Hewitt, LLP is an Indianapolis law firm focusing on business law, information technology law (including SaaS law and legal technology consulting), private equity consulting, and business and Internet litigation.

Indiana Is More Than Low Cost Housing And A Good Family Enviornment

Friday, November 20, 2009 by David Castor
There are several business blogs that I follow.  Most of these are written by SaaS law / Internet law clients of mine or other Indiana businesses in technology industries.  Lately I have been falling behind on them.  This morning I am trying to catch up. 

I came across a very good, brief video on Kristian Andersen + Associates' blog.  

The video is from the Bigger Ideas/Smaller Indiana conference this past summer.  In the video Kristian Andersen shares his feelings on central Indiana's business environment and our tendency to minimize our solid business culture by holding ourselves out as having two strengths to attract businesses and entrepreneurial ventures to Indiana:

#1 - Indiana has low housing costs.
#2 - Indiana is a great place to raise a family.

Don't get me wrong, these are great attributes of our region, but I agree with KA that they do not create cultural excitement or substantive value for businesses.  If you look at top tier business environments, they certainly do not market themselves in this way.  They sell value.  They sell cultural significance.  They sell networks and incentives.

Kristian, very nicely done!


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Alerding Castor Hewitt, LLP is an Indianapolis law firm focusing on business law, information technology law (including SaaS law and legal technology consulting), private equity consulting, and business and Internet litigation.







Today is the Innovation Summit

Tuesday, September 29, 2009 by David Castor
The TechPoint Innovation Summit 2009 is finally here.  I have been looking forward to this event this year (which has not necessarily been the case in past years). 

This year's focus is more tailored to helping seed and emerging stage Indiana technology companies pursue excellence in developing their innovation, marketing their innovation and seeking funding for their innovation.  As an Indiana tech lawyer these topics hit right at heart of the needs I have wrestled through with my clients.  

I am moderating the plenary panel this afternoon on Funding Innovation in Indiana.  The panel includes representatives from angel investor groups, private equity firms, and state sponsored innovation grant organizations.

Clayton Christensen is the keynote speaker at lunch.  I just finished reading his book The Innovator's Dilemma - a "how to" book on business development for innovation companies.

My firm is hosting a booth at the event.  Also, keep an eye out for Iasta, who will be hosting a booth near ours. 



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Alerding Castor Hewitt, LLP is an Indianapolis law firm focusing on business law, information technology law (including SaaS law and legal technology consulting), private equity consulting, and business and Internet litigation.




Lori Drew- The Saga Continues

Tuesday, September 1, 2009 by Chris Stephen
I had every intention today of writing an insightful piece on the recent Lori Drew decision handed down by District Court in California yesterday, however, Eric Goldman beat me to it. So, I'm going to instead give you the link to his blog post on it and send him a big kudos from the Indiana technology law world. 

Professor Goldman's tech and marketing blog (which I recommend to anyone that is interested in cyberlaw or Internet litigation) is http://blog.ericgoldman.org/.  His blog also has a link to the opinion.

I agree with his analysis, but don't just take my word for it; read it.  

Of course, the real danger I see in this opinion is the likelihood of legislation aimed at "fixing" the perceived problems with trying to shoehorn criminal cases into CFAA.  This potential scares me quite a bit actually.  From an Internet litigation standpoint, I think this case has significant criminal importance, slight or non-existent civil liability impact, and the potential for havoc-wreaking ramifications when wielded in the hand of legislators that are knee-jerk and not really educated on the realities and implications of the Internet.  This potential legislative hammer could have real impact on website owners and SaaS providers in terms of what can or cannot be dealt with in either their Terms of Service or at other parts of their websites. 

Beginning the story of an Indianapolis Technology Laywer

Thursday, June 11, 2009 by Chris Stephen

For my first foray into the world of blogging, I think the important first step is to answer the standard journalism questions necessary for any good story, namely, the who, what, when, where, and why.  Sorry for the length. I promise that future blogs will be shorter.  Without further adieu, here we go . . . .

 

Who:  This one is easy because I know a lot about me.  My name is Chris Stephen and I consider myself first and foremost a litigator.  Some people in my field like to classify themselves first as attorneys and then focus into their specialty, but I start with what I love.  I enjoy the law and I immensely enjoy helping people, which are both great aspects of being an attorney, but my passion is litigation.  The constant strategy that is trial and appellate litigation is intoxicating and addictive, and I seek it out.  Secondly, I consider myself a technophile.  I enjoy learning about the new and emerging technologies and the implications that they have for our world (and more specifically for the microcosm that is the legal world).  But for more about me, please feel free to check out my bio at http://www.alerdingcastor.com/professionals/cstephen.html      

 

What:  This question is slightly more difficult to answer.  What is “technology litigation”?  To me, it is the emerging areas of litigation that focus on the interplay of technology and our world.  Globally, we are becoming evermore connected and technology is advancing at an outstanding rate.  And, as with all areas of society, as innovation advances, the legal world is left to catch up.  As the legal world transitioned from the radio to the television and from the telephone to the Internet, new laws and new legal interpretations are constantly evolving.  This evolution has been evident for some time in the transactional side of the law as newly emerging companies seize new ideas and seek to make businesses out of them. But the litigation side is still burgeoning.  This is a natural consequence of the legal framework.  You often don’t have litigation first and transactions second. The transactions come first and then we litigators argue about where the transaction falls apart, and in doing so, law is created.  But too often in the law, people are trying to use 20th (or sometimes 19th) century laws to deal with 21st century problems.  So my goal with this blog is to bring to light the new and emerging areas of law (and potential litigation minefields) that surround the interplay of technology in our world.  This encompasses information technology, e-commerce, privacy, data ownership, cyberlaw, e-discovery, website ownership, some trademark and just about anything else that I (or you) can think of.  Of course, I’m also likely to include general litigation points or developments that strike my fancy.

 

When:  I make no promises, but the when is going to be as often as I can.

 

Where:  While the scope of the issues I plan to address are global, my location is Indianapolis, Indiana, which is a beautiful mecca of the Midwest.  Be it ever so humble there is no place like home.  More specifically, the “where” is Alerding Castor LLP (or as I’m likely to affectionately refer to it “AC”).  Alerding Castor is a quickly emerging law firm in Indianapolis that focuses on virtually all areas of business and corporate law, general and complex litigation and trials, probate litigation, real estate, private venture capital, and technology law.  One of the name partners, David Castor is an outstanding transactional law who has established himself as a guru of SaaS law and transactions.  The other name partner Michael Alerding is one of the best litigators I’ve ever met.  Together they make a great team, and have brought together a great team.  Obviously, I’m somewhat biased because they sign my paychecks, but, I think they both deserve a “shout out” for what they are doing and what they are building. 

To learn more about AC, check out http://www.alerdingcastor.com/index.html .  To learn more about David, check out his blog at http://blog.alerdingcastor.com/blog/alerding-castor.   

 

Why:  “What work I have done I have done because it has been play. If it had been work I shouldn't have done it. Who was it who said, ‘Blessed is the man who has found his work’? Whoever it was he had the right idea in his mind. Mark you, he says his work--not somebody else's work. The work that is really a man's own work is play and not work at all. Cursed is the man who has found some other man's work and cannot lose it. When we talk about the great workers of the world we really mean the great players of the world. The fellows who groan and sweat under the weary load of toil that they bear never can hope to do anything great. How can they when their souls are in a ferment of revolt against the employment of their hands and brains? The product of slavery, intellectual or physical, can never be great.”  -Mark Twain

SaaS Law - Indianapolis is a Great SaaS City

Sunday, April 19, 2009 by David Castor
Indianapolis - software technologyThere was a great post this last week in the Indianapolis Business Journal's blog on Indianapolis being a leading Internet marketing software city.  Chris Baggott of Compendium Blogware was interviewed on his thoughts regarding the market. 

Here is an excerpt:

Chris Baggott, who runs one of the companies developing the software, Compendium Blogware, says Indianapolis actually has emerged as a center of the budding industry.

Consider that the city also hosts ExactTarget and Aprimo, both of which have filed intentions to go public. There’s also 5 Buckets, Lights Out Intelligence and Market Path. Broaden the definition slightly, and there’s WebLink International, eTapestry and the well-established Interactive Intelligence.

All told, the micro cluster has more than 1,000 employees.

“Quietly we have become the Internet marketing software capital of the world,” Baggott says.

I am very proud of the SaaS market we have created in this city.  We have the infrastructure, knowledge-base and, maybe most importantly, the community and culture where software licensing companies are encouraged to grow.  Although I would like to see the city lend further support to this growing industry, the community to support entreprenuership, innovation and private equity investments in these businesses.

In addition to the companies cited by Chris, we have high-growth Indiana technology companies like Iasta and Vontoo and emerging SaaS companies such as Koi Systems, CareerScribe and P2P Solutions in Indianapolis.

As a final note, I am proud of the reference in the post to LightsOut Intelligence - a web intelligence SaaS business currently officed at the Alerding Castor business incubator.



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Alerding Castor is an Indianapolis law firm focusing on business law, information technology law (including SaaS law and legal technology consulting), private equity consulting, and business litigation. 

Probate Litigation Update – March 11, 2009

Wednesday, March 11, 2009 by Gregg Gordon
Probate litigation often arises because siblings take issue when they are not treated equally by their parents.  In those cases, allegations of undue influence by the favored child/children are oftentimes made by the other siblings. Probate attorneys should pay particular attention to the following decision given this language from the Court of Appeals:

… courts must proceed with caution in analyzing these situations and that an automatic presumption that any adult child who assists an aging parent is presumed to be in a dominant role and exert undue influence over that parent’s decisions is ill-advised. We caution that love, attention, and occasional assistance provided by an adult child typically and naturally arise from a sense of filial duty. It seems unreasonable for our courts to rely exclusively upon care, compassion, or generosity by an adult child for their ailing parent and then render such actions suspect. These relationships must be carefully examined in light of the surrounding circumstances before any conclusions regarding that child’s dominance and influence be made. (emphasis added).

Here is the decision:

Bruce Barkwill v. The Cornelia H. Barkwill Revocable Trust
 No. 64A04-0808-CV-455

This matter involved two brothers, one who lived in Chicago and one who lived in Florida. Their mother, the settlor, lived alone in northwest Indiana.  The Chicago son assisted his mother financially during her life. In March of 2006, the Chicago son visited his mother and found her to be extremely disoriented.  The mother also called her Florida son and “made some rather strange accusations” against the Chicago son and his family.  The Florida son was convinced the mother was either “drugged out” or paranoid and, after speaking with the Chicago son, decided to travel to Indiana to assess the situation personally.

The Florida son’s visit was the first time he had seen in mother in several years. During the visit the mother continued to display unusual behavior including lunging at the Florida son with a steak knife after the two of them had a disagreement about the mother eating on the floor. The mother was eventually seen by her physician who discovered that the mother was obtaining Valium from the internet and was abusing the drug. After the visit with her doctor, the mother would not communicate with the Florida son, did not want to continue the visit and denied needing any help. Eventually the mother resumed treatment with her physician, stopped using Valium and when the Chicago son spoke with his mother in May or June 200, she “seemed to be back to her normal self.”

After these series of events, the mother met with an attorney and conveyed to him, over a series of meetings and a telephone call, that she was displeased with the Florida son during the recent visit and that he had not been attentive to her throughout his life.  The attorney observed that the mother was “competent, had a plan in mind, and had sensible reasons for her plan.”  The mother then executed a trust leaving everything to the Chicago son. The mother died the following year. The Florida son filed a petition to determine interest in a trust and requested that an early trust be reinstated. After a two day bench trial, the trial court held the most recent trust was valid.

On appeal, the Florida son argued that the trial court failed to apply the necessary presumption of undue influence by the Chicago son on the mother. The Court concluded that the trial court appeared to reject application of the presumption of undue influence, but conditionally acknowledged that even if such a presumption applied it would have been overcome. The Court went on to review the facts of the matter and concluded itself that:

Under these circumstances, we conclude that [the Chicago son] was not in a dominant role in the relationship with his mother at the time she changed the trust, and therefore, no presumption of undue influence attaches. Even if [the Chicago son] had been in the dominant role, he rebutted the presumption of undue influence with clear and convincing evidence. The trial court had ample evidence to conclude that [the mother] was competent to alter her estate plan and she was not under [the Chicago son’s] influence in making the alterations.

In reaching this conclusion, the Court noted that the determination of whether the Chicago son “was truly in a dominant position in his relationship with [his mother] was a highly fact-sensitive one” and concluded that the facts in this matter were unlike those in other decisions where it was concluded that adult children were in a dominate position over their ailing parents.

The opinion was handed down on March 11, 2009 and the full text of the opinion can be found here.