Jeanelle Lust to speak at upcoming seminar

Prince Charming has left the building... becoming your own money hero.

June 13, 2009

10:30 am to 3:30 pm

1523 N. 33rd

Lincoln NE

This workshop is designed for women facing the life transition of
divorce or the death of a husband. Despite the swirl of uncertainty that
can sometimes surround you at this time, your life's journey continues.
Some of that uncertainty can be dealing with the financial end of
things. This workshop will help clarify what truly matters to you right
now, right here in this moment of your life. You will discover that you
have the courage and ability to make wise decisions in regards to your
money and how to begin to take action using your natural strengths and
virtues. No matter what you're dealing with financially and emotionally
there is a way to move forward and see all sorts of possibilities.
Attend this workshop and you will:

1. Learn why worry about money is normal and what you can do about it.

2. Discover how to take the easiest course of action when moving towards
your own personal money goals.

3. Discover ways to make decisions about money that are based on what's
truly important to you.

4. Learn how to create a support team that will guarantee your success.

Location:

This workshop will be held at the International Quilt Study Center and
Museum. The Quilt Museum is located on the northwest corner of the
intersection of 33rd and Holdrege Streets. Enter off 33rd Street.
Parking is north of the building (west of the fire station). Parking is
free in the entire lot north of the building (not just those spots
specifically reserved for museum visitors). Jot down your license plate
number to note at the admissions desk. For more information, to find
a map, or to link to the Quilt museum's website go to
www.beamoneyhero.com

MONEY HERO TEAM

Members Kris Thaller, Maria Pruitt, and Jeanelle Lust are dedicated to
empowering women in regards to their life's journey with money. Their
one of a kind interactive workshops acknowledge the incredible journey
women are on while facing life transitions such as getting married,
divorce, the death of a husband, retirement or career change. Each
workshop is a unique blend of life coaching, financial advice and legal
expertise.

Jeanelle Lust is the managing partner at the Knudsen Law Firm where she
practices in general commercial law with an emphasis on litigation.

Maria Pruitt is the District Manager of United First Financial, and is a
Certified Financial Budgeting Coach.

Kris Thaller is Owner of Coaching Dimensions and a Certified Life Coach
and Organizational Coach.

Special Guest Speaker:

Jody Hunke is a Financial Advisor for Smith Barney and a Certified
Divorce Financial Analyst. She works with clients to financially plan
for retirement, college expenses, and wealth management

Registration:

Name____________________________________

Address___________________________________

City _____________________________________

State_____________________________________

Zip______________________________________

Phone____________________________________

Return with check for registration fee to:

Coaching Dimensions, 10200 Weeks Dr., Lincoln, NE 68516

Register on-line at www.beamoneyhero.com.

Credit cards accepted on-line via PayPal

Questions -call 402.890.5741

Early bird registration: $59.95.

After May 31, 2009: $69.95 (no later than June 7, 2009)

Registration fee includes Quilt museum tour and a box lunch

Email jlust@knudsenlaw.com if you have questions.

Jeanelle Lust

NSHHRA Update 4-1-09 (use of SSNs)

http://www.knudsenlaw.com/Att_Bio_KRM.htm
http://www.knudsenlaw.com/

Employer Use of Social Security Numbers

Many Nebraska employers are unaware they now have restrictions on the use of social security numbers. See Neb. Rev. Stat. § 48-237.

Under Nebraska law employers may not:

(a) Publicly post or publicly display in any manner more than the last four digits of an employee's social security number, including intentional communication of more than the last four digits of the social security number or otherwise making more than the last four digits of the social security number available to the general public or to an employee's coworkers;

(b) Require an employee to transmit more than the last four digits of his or her social security number of the Internet unless the communication is secure or the information is encrypted;

(c) Require an employee to use more than the last four digits of his or her social security number to access an Internet web site unless a password, unique personal identification number, or other authentication device is also required to access the Internet web site; or

(d) Require an employee to use more than the last four digits of his or her social security number as an employee number for any type of employment-related activity.

Employers may still use more than the last four digits of a social security number for:

(i) Compliance with state or federal laws, rules, or regulations;

(ii) Internal administrative purposes, including provision of more than the last four digits of social security numbers to third parties for such purposes as administration of personnel benefit provisions for the employer and employment screening and staffing; and

(iii) Commercial transactions freely and voluntarily entered into by the employee with the employer for the purchase of goods or services.

However, in using the social security numbers for internal administrative purposes, employers may not use the:

(i) As an identification number for occupational licensing;

(ii) As an identification number for drug-testing purposes except when required by state or federal law;

(iii) As an identification number for company meetings;

(iv) In files with unrestricted access within the company;

(v) In files accessible by any temporary employee unless the temporary employee is bonded or insured under a blanket corporate surety bond or equivalent commercial insurance; and

(vi) For posting any type of company information.

A violation of the statute is guilty of a Class V misdemeanor, and evidence of such a conviction is admissible in a civil trial as evidence of the employer's negligence.

As a consequence of § 48-237, employers are cautioned to only collect, retain and use social security numbers for legitimate purposes. Employer procedures should restrict access to documents containing social security number, and use should be limited as set forth in this law.

Kevin McManaman

krm@knudsenlaw.com

www.knudsenlaw.com

Red Flags Rule

<http://www.knudsenlaw.com/Att_Bio_KRM.htm>
<http://www.knudsenlaw.com/>

The Red Flags Rule

By some estimates, nearly half of the health care providers in America
will soon be in violation of new federal identity theft rules. The
so-called "Red Flags Rule" was developed pursuant to the Fair and
Accurate Credit Transactions (FACT) Act of 2003, under the authority of
the Federal Trade Commission (FTC). See 16 CFR 681 (which can be found
at:
http://ecfr.gpoaccess.gov/cgi/t/text/text-dx?c=ecfr&tpl=/ecfrbrowse/Titl
e16/16cfr681_main_02.tpl). Many health care providers have still never
heard of the Red Flags Rule, and many others are nevertheless unsure
whether the law applies. Even fewer are ready now to comply. Quick
action may be needed.

Under the rule, financial institutions and other "creditors" with
covered accounts must have implemented written identity theft prevention
programs designed to identify, detect and respond to patterns, practices
or specific activities that could indicate identify theft. The
definition of "creditor" is very broad and can be read to apply to many
healthcare companies (recent AMA challenges to this interpretation
failed - see attached FTC letter). Any entity that provides goods or
services and then later bills for the goods and services is a
"creditor," so incidental bills to patients, private pay, and insurance
claims can all fall under the rule because they often defer payment for
goods or services. As a creditor with covered accounts, health care
providers need to comply.

The FTC issued relatively little pre-implementation guidance
compared to entities that typically regulate health care (such as CMS).
In fact, the FTC delayed enforcement of the Red Flag Rules because of
reports that numerous companies were not even aware they were covered.
Originally, the plan was set to be implemented November 1, 2008 but the
six month delay until May 1, 2008, was put into place to give
non-financial institutions an opportunity to develop a program. Despite
further attempts to delay implementation, May 1, 2009 remains the
deadline for compliance, and fines can range from $2,500.00 to
$11,000.00 per violation. While it is unlikely enforcers will be at
your door on May 2, eventually you will probably be asked to present
your plan, either during an audit or in a courtroom, and in any event it
would be best to present a plan that was at first initially implemented
on time.

A program designed to identify and prevent identity theft must
be in writing, and tailored to the particular institution. The red
flags in the program may include, for example, unusual account activity,
fraud alerts on a consumer report, or attempted use of suspicious
account application documents. When a patient claims they are receiving
a bill for a provider that never served them or even a service that was
never provided, for example, a red flag has likely been raised. The
program must also describe the appropriate responses that would prevent
and/or mitigate the crime and a detailed plan to update the program.
Furthermore, senior employees or the Board of Directors should provide
oversight, staff and training.

In the health care setting, it is possible that existing HIPAA
required mechanisms can satisfy some of the requirements given the
purported FTC "flexibility" of what a written program should be. HIPAA
rules primarily address medical records, however, the Red Flag Rules
also focus on financial matters. Moreover, the Red Flag Rules require
an affirmative attempt by the creditors to respond to evidence of
medical identity theft. A mere document will not due when a written
program is called for, and HIPAA is merely a supplement, not a
substitute for a proper program.

The FTC insists that that Red Flags Rule is flexible and allow creditors
the opportunity to design a program appropriate to their size and
complexity, as well as to the nature of the operations. In some
circumstances, the FTC says, a "simple streamlined" program would be
adequate, such as a requirement of checking a photo identification when
services are sought, and having procedures designed to appropriately
respond if alerted by law enforcement to some identity misuse. Such
procedures might be common-sense. For example, when learning of
identity theft, a creditor should not try to collect the debt from the
person whose identity was stolen, nor reporting the debt to a credit
agency, and medical providers must keep the medical information separate
from the tainted financial information. It must be remembered, however,
the program must be written.

Larger institutions will likely need correspondingly more robust
programs given the larger likelihood of identity theft. Robust programs
for larger institutions may require a privacy committee headed by a
privacy officer, with members chosen from discrete departments
including, for example, representatives from a pharmacy, administration,
nursing, admissions, billing, etc. Formal risk assessments would likely
be needed, along with reporting mechanisms, action plans, formalized
procedures, employee training, oversight and periodic review.

More information can be obtained from the Federal Trade Commission
website, including guidelines that the FTC believes should be helpful in
assisting covered entities in designing their programs. On April 2, the
FTC provided additional guidance on its new Red Flags Rule website
<http://ftc.gov/redflagsrule> , including a new "How To"
<http://ftc.gov/bcp/edu/microsites/redflagsrule/link-to-us.shtm> guide.

Kevin R. McManaman

krm@knudsenlaw.com <mailto:krm@knudsenlaw.com>

Knudsen, Berkheimer, Richardson & Endacott, LLP

3800 VerMaas Place, Suite 200

Lincoln, NE 68502

402/475-7011 (office)

402/475-8912 (fax)

402/440-2982 (cell)

www.knudsenlaw.com

Res Judicata and Collateral Estoppel

There are two separate but related doctrines that bar relitigation of
claims: claim preclusion and issue preclusion. Claim preclusion is most
often called res judicata (or sometimes merger and bar), while issue
preclusion is most often called collateral estoppel.

In most situations, whether the facts are analyzed under the name of res
judicata or issue preclusion, the end result may be the same, but there
still is a considerable difference. The doctrine of res judicata
provides that a final judgment on the merits is conclusive upon the
parties in any later litigation involving the same cause of action.
Collateral estoppel applies when an issue of ultimate fact has been
determined by a final judgment, and that issue cannot again be litigated
between the same parties in a future lawsuit

Pipe and Piling Supplies (USA), Ltd v. Betterman & Kattelman, 8 Neb.
App. 475, 478-79, 596 N.W.2d 24, 28 (1999).

Res Judicata

The doctrine of res judicata provides that a final judgment on the
merits is conclusive upon the parties in any later litigation involving
the same cause of action. Kerndt v. Ronan,
<http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=595&FindType
=Y&SerialNum=1990121648> 236 Neb. 26, 458 N.W.2d 466 (1990)
<http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=595&FindType
=Y&SerialNum=1990121648> . The real issue is what is the cause or causes
of action involved in the disputes between the parties in both cases?

Pipe and Piling Supplies (USA), Ltd. v. Betterman & Kattelman, 8 Neb.
App. 475, 479, 596 N.W.2d 24, 29 (1999) citing Swift v. Dairyland Ins.
Co.,
<http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=595&FindType
=Y&SerialNum=1996112898> 250 Neb. 31, 547 N.W.2d 147 (1996)
<http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=595&FindType
=Y&SerialNum=1996112898> , "Res judicata is not available when the cause
of action in the original action is different from the current cause of
action." Id.

In Schuelke v. Wilson, 255 Neb. 726, 733, 587 N.W.2d 369,
375 (1998), the Nebraska Supreme Court ruled that res judicata does not
apply if the trial court does not render findings of fact or conclusions
of law on the issue alleged to be barred:

In the first trial, which culminated in our ruling in Schuelke, supra,
neither the trial court nor this court rendered findings of fact or
conclusions of law pertaining to the merits of Wilson's counterclaim
raising Schuelke's alleged breach of the promissory notes or of the
merits of Schuelke's affirmative defense thereto. Neither Wilson's
counterclaim nor Schuelke's affirmative defenses are res judicata. The
elements of proof in Schuelke's initial claim against Wilson for
rescission based upon fraudulent misrepresentation and Wilson's
counterclaim against Schuelke for breach of contract are not the same,
and claim preclusion was properly not invoked by the trial court upon
remand to bar Schuelke's presentation of evidence in support of his
affirmative defense to Wilson's counterclaim alleging default on the
notes. See, e.g., Lincoln Lumber Co. v. Fowler, 248 Neb. 221, 533 N.W.2d
898 (1995) (holding that where elements of proof differ between causes,
judgment in one action may, but does not necessarily, preclude judgment
in another, factually related action).

Mischke v. Mischke, 253 Neb. 439, 449, 571 N.W.2d 248, 257 (1997) is on
point here:

The issue of the value of personal property is not res judicata because
the parties did not stipulate to the value of the property in the first
proceeding. Furthermore, the purpose of the first proceeding was not to
determine the value of the property. Rather, it was an action to
determine ownership of the property and to compel the appellees to give
an accounting. Thus, the value of personal property was not an issue
either actually litigated or that could have been litigated in the first
proceeding.

Thus the doctrine of res judicata does not bar parties from bringing
related, but different causes of action.

Collateral Estoppel

The doctrine of collateral estoppel "recognizes that limits
on litigation are desirable, but a person should not be denied a day in
court unfairly." Gottsch v. Bank of Stapleton, 235 Neb. 816, 837, 458
N.W.2d 443, 457 (1990) (quoting Vincent v. Peter Pan Bakers, Inc., 182
Neb. 206, 207, 153 N.W.2d 849 (1967)). Four conditions must exist in
order for the doctrine of collateral estoppel to apply: (1) The
identical issue was decided in the prior action, (2) there was a
judgment on the merits which was final, (3) the party against whom the
rule is applied was a party or in privity with a party to the prior
action, and (4) there was an opportunity to fully and fairly litigate
the issue in the action. Bisgard v. Johnson, 3 Neb. App. 198, 525 N.W.2d
225 (1994). Collateral estoppel cannot, however, be applied to bar the
claims asserted by persons who have not had their day in court.

Due process requires that the rule of collateral estoppel operate only
against persons who have had their day in court either as a party to a
prior suit or as a privy; and, where not so, that at least the presently
asserted interest was adequately represented in the prior trial.

Gottsch, 235 Neb. at 837, 458 N.W.2d at 457 (quoting Hickman v.
Southwest Dairy Suppliers, Inc., 194 Neb. 17, 28-29, 230 N.W.2d 99, 106
(1975); Borland v. Gillespie, 206 Neb. 191, 292 N.W.2d 26 (1980)).

In JED Construction Co. v. Lilly, 208 Neb. 607, 305 N.W.2d 1
(1981) the Court stated that "the party against whom the rule is to be
applied was a party or in privity with a party to the prior action" is a
requirement of collateral estoppel. Id. The Lilly Court explained that
there is no need for both the plaintiff and the defendant to be the same
parties, as long as the party to be bound was a party to the previous
action. Id. at 611, 305 N.W.2d at 3-4.

The rule in Nebraska is that the same party against whom
preclusion is sought must have been involved in the prior action.
Cunningham v. Prime Mover, Inc., 252 Neb. 899, 903, 567 N.W.2d 178, 181
(1997) (quoting Kopecky v. National Farms, Inc., 244 Neb. 846, 854, 510
N.W.2d 41, 48 (1994)). For example, Gottsch v. Bank of Stapleton, 235
Neb. 816, 458 N.W.2d 443 (1990), involved an action to impose a
constructive trust on the proceeds from the sale of cattle purchased
from Gottsch by the Churchills. In a prior action, Gottsch obtained
judgment against the Churchills for the purchase price of the cattle.
In the Bank of Stapleton case Gottsch sought to impose a constructive
trust on proceeds from the sale of those cattle that were received by
the a defendant/bank as payments on notes owed by the Churchills. The
Supreme Court held that the doctrine of collateral estoppel did not
apply, even though the Churchills had litigated and lost the earlier
collection case brought by Gottsch. Discussing the requirement of
privity, the Supreme Court noted that:

"Privity depends upon the relation of the parties to the subject-matter,
rather than their activity in a suit relating to it after the event....

"Privity implies a relationship by succession or representation between
the party to the second action and the party to the prior action in
respect to the right adjudicated in the first action."

. . . . Privity has also been defined as [m]utual or successive
relationship to the same rights of property. In its broadest sense,
"privity" is defined as mutual or successive relationships to the same
right of property, or such an identification of interest of one person
with another as to represent the same legal right.... Derivative
interest founded on, or growing out of, contract, connection, or bond of
union between parties; mutuality of interest.

Id. at 838, 458 N.W.2d at 457 (citations omitted).

The Supreme Court noted that "the mere fact that litigants
in different cases are interested in the same question or desire to
prove or disprove the same fact or set of facts is not a basis for
privity between the litigants." Id. at 839, 458 N.W.2d at 458 (citations
omitted). The Supreme Court concluded that the issue tried in the
collection case against the Churchills was for a personal judgment and
did not involve the issue of title to the cattle. The bank was not,
therefore, in privity with Churchills and could litigate the issue of
the ownership of the cattle.

Jeanelle R. Lust

jlust@knudsenlaw.com

www.knudsenlaw.com