Posts Tagged ‘legal’
Breaking E-Mail Marketing News: CAN-SPAM Act Update
Tuesday, May 20th, 2008
The Federal Trade Commission announced in a press release today that it will soon be publishing clarifications to the CAN-SPAM Act of 2003. The following topics are to be addressed:
(1) an e-mail recipient cannot be required to pay a fee, provide information other than his or her e-mail address and opt-out preferences, or take any steps other than sending a reply e-mail message or visiting a single Internet Web page to opt out of receiving future e-mail from a sender.
(2) the definition of “sender” was modified to make it easier to determine which of multiple parties advertising in a single e-mail message is responsible for complying with the Act’s opt-out requirements.
(3) a “sender” of commercial e-mail can include an accurately-registered post office box or private mailbox established under United States Postal Service regulations to satisfy the Act’s requirement that a commercial e-mail display a “valid physical postal address.”
(4) a definition of the term “person” was added to clarify that CAN-SPAM’s obligations are not limited to natural persons.
Keep your eyes peeled for it. The good news is that if you are already conducting an ethical email marketing campaign, these specifications should not affect you one way or another. If not, you may want to revise your strategy. For some guidance, check out Keeping Your E-Mail Campaigns Legal .
Tags: CAN-SPAM, E-Commerce and E-Business, email marketing, law, legal, legislation, Marketing, Marketing Your Business, news, Rebecca Button
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Non-Compete Contracts and Whether or Not You Should Use Them
Thursday, April 17th, 2008
With businesses constantly wary of losing staff to rival companies, many are now enforcing what’s known as non-compete contracts. This is where new employees sign a contract that states they cannot contact a client of their old company to take them to their new place of work. It usually applies for anywhere between 2-3 years from the date the ex-employee leaves the company. However, whilst it’s an excellent way for business owners to protect not only their clients but also their intellectual property, it can also have its negative sides.
The Pros of Non-Compete Contracts
The obvious benefit of having a new employee sign a non-compete contract is the protection it offers you and your business. Say you have an excellent sales person who accounts for over half of your annual sales alone - there’s a reason they have such a high success rate, and a lot of it has to do with the relationship with the client. If that same salesperson was to leave your company, there’s a strong possibility that they could take their best clients with them, which could prove extremely costly for your company. Having them sign a non-compete contract will negate this possibility.
The other benefits of having a non-compete contract is that they can save you a fortune in legal fees if there was a case of an ex-employee stealing your best clients. Since they signed the contract in question, any defense they would have had would be null and void, as they would be in breach of contract.
The Downside
While there’s no question that a non-compete contract can offer you a high level of protection when it comes to your core business, they can also have the opposite effect as well. One of the biggest downsides of enforcing these types of contracts is that it can actually put people off wanting to work for your business.
With employees changing jobs as frequently as they do in today’s job market, anyone looking at a company that has a non-compete contract in place might actually prefer to look elsewhere. This is particularly true if it’s a sales role that you’re looking to fill, with many salespeople preferring to build from an old client base as opposed to starting from scratch.
They can also be difficult contracts to enforce, even in a court of law or employment tribunal. In the US especially, there are many states that won’t officially recognize a non-compete contract. And although a decision may go your way in court, the cost of bringing it to trial in the first place can be an expensive endeavor.
The Alternative
Since there is no clear-cut strength and weakness of a non-compete contract, many companies are now looking at alternatives. One of the most popular is the “300% Contract”. Instead of a new employee signing a non-compete contract, they will agree instead that should they leave and take any of your clients with them, they will have to pay you compensation to the value of 300% of that client’s annual spend with your company.
Tags: advice, danny brown, employees, Hiring and Human Resources, legal, management, non-compete contracts, tips
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10 Ways to Avoid Judge Judy…besides changing the channel.
Monday, March 24th, 2008
It ranks right up there with getting your wisdom teeth pulled or surviving the first anniversary of your 29th birthday (for those who haven’t had their coffee yet, that would be your 30th birthday-the horror!). And yet, much like getting your wisdom teeth out (probably inevitable) and turning 30 (definitely inevitable), if you run a business, odds are you’ll eventually have to deal with the unpleasantness known as a lawsuit.
Your best defense is a good offense and you can create a good offense by taking some preventative steps to reduce the risk of being threatened with a lawsuit according to a presentation covered by the Beaufort Gazette recently:
• Rule No. 1: Incorporate. Going alone often provides poor asset protection and poor tax benefits. Have an attorney or accountant review corporate records once a year.
• Rule No. 2: Know the law. Ignorance is no defense, and in fact it’s a good way to get sued. Small-business owners should particularly focus on employment and tax laws. Good record-keeping and proactive tax planning are key.
• Rule No. 3: Maintain adequate insurance. Conducts an "insurance physical" every few years. Business owners should be aware that it’s possible to be over-insured. Employment-practices liability insurance can help businesses respond to claims of employment discrimination.
• Rule No. 4: Manage fairly and wisely. Business owners should beware of falsified résumés, have detailed job descriptions, tackle poor performance early and consistently enforce policies.
• Rule No. 5: Prohibit harassment. A 2007 Texas case indicates "some male supervisors are still truly clueless." Case in point:
A male director of nursing was accused of quizzing female employees about their sex lives two to three times a week in front of other employees, including asking them if they took men home the previous night. When the women asked him to stop, he threatened to fire them.
At trial, he admitted he was questioning the women this way because he thought that if they had a lot of sexual activity the night before, it would affect their work performance because they would be tired — that’s what he said. I can’t believe this case even went to trial. The jury awarded each woman $7,500.
• Rule No. 6: Catch and correct wage and hour violations. Failure to pay overtime is "the new food for plaintiffs’ attorneys." Since 2003, federal court filings involving wage actions have surpassed employment discrimination cases, and settlements have reached into the tens of millions of dollars.
• Rule No. 7: Be careful with independent contractors. Conduct regular reviews of independent contractor classifications and careful consideration of how much control business owners have over contractors.
• Rule No. 8: Watch out for workers’ compensation claims. Adequate training and maintaining a drug-free workplace can prevent accidents. If they do occur, immediately reporting claims and having a return to work commitment helps. Signs of possible fraud include claims by a disgruntled or new employee, an employee on leave who is difficult to contact, or accidents to which there are no witnesses.
• Rule No. 9: Hire an attorney. Interview several before making a selection, and hold regular meetings to compare case progress with budget constraints and requiring authorization for expenses exceeding $200.
• Rule No. 10: Document, document, document. Keep tax-related records for at least eight years, employee records for the term of employment, plus five years, and shred papers before disposal.
SmallBusinessNewz.com also has prepared this short video clip with a few more tips the keep you "out of the the dog house."
Tags: Accounting, Finance, Finance and Accounting, law, lawsuit, legal, Rebecca Button, small business, taxes
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Don’t Get Mad - Get to Know The National Ombudsman
Wednesday, March 5th, 2008
Have you ever felt that taxes and regulations are unfairly burdening your business or industry?
If you are like many small business owners, you are of the mindset that there is nothing you can do about it, and that you should just suffer with it. After all, how are you going to convince government forces that they are hurting you? As a small business, you may think you do not have enough influence to make a difference.
In some respects, you may be right. Your small business alone does not have the sway with government regulators and lawmakers that a large corporation has. However, many small businesses, linked together, do.
This is the concept that guided the creation of the National Ombudsman. The Small Business National Ombudsman is a direct link between small businesses and authorities in the federal government.
The creation of the National Ombudsman position came from the government as a way to create an impartial official who would investigate complaints levied by citizens against the government, and recommend resolutions to their problems.
How the Process Works
Once you feel your business is being unfairly regulated, you can file a complaint with the National Ombudsman’s Office .
You will receive a call from the Ombudsman’s office to discuss the complaint. In many cases, there are already programs in place to aid in the resolution of business problems. They may point you toward one of these resources.
If your case is not easy to solve, it will move to the next level - investigation. An investigator will take your case and look more deeply into the situation.
Once the investigator has completed the job, he or she will make a recommendation for your case. If it is found the government agency has wronged your business, there will be a request entered for correction of that wrong. You will also receive a copy of the findings and the Ombudsman’s recommendation.
While the government does not have to comply with these recommendations, they often follow them.
FAQs About Contacting the National Ombudsman Office:
Q. What types of complaints does the Ombudsman look at?
A. Among the most common complaints from small businesses are those relating to excessive audits, fines, threats and investigations of a business by federally regulated agencies.
Q. Can I complain anonymously?
A. While the investigator will try to keep your identity private, you will have to let the National Ombudsman Office know who you are and give them details about your business for an effective investigation.
They will try to keep your identity from government officials; but in many cases, there may be no choice but to reveal your identity to allow a clear presentation of the complaint to the government agency in question.
If confidentiality is a major concern, you can discuss this with the National Ombudsman Office when they call to go over your complaint.
Tags: government, Leeia Ladipoh, legal, national ombudsman office, ombusdman, small business policy, taxes and regulations
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Mistakes That Can Land You in Court - and Out of Business
Thursday, February 14th, 2008
When you are selling items online, you have to balance your desire to make the sale with the importance of not making an offer your items can’t live up to.
When you look over your product descriptions, are they as honest and accurate as they could be? Even if you think they’re pretty close, the details you omit, or allow to be assumed could be an opening for a lawsuit.
In this article, we’ll take a look at how having accurate product descriptions could keep you - and your business - off the docket.
Mistakes Happen….Right?
Once upon a time a mistake in a description would have been something that may have been worked out in a discussion between a business owner and a customer. These days, there is just as much of a chance that you could be the recipient of legal paperwork.
Many small businesses believe since they are small, they won’t be a target for someone that wants to sue for a slip-up; and even if they are, that it won’t cost that much. Think again. While a disgruntled customer may not get a lot of money out of you in a lawsuit, you will still end up paying fees to your attorney and theirs - and you stand to lose a great deal of money that can put you out of business.
Additionally, while a large company is used to legal proceedings and has money set aside for lawsuits and other legal incidents, small businesses usually use their money to operate and handle day-to-day expenses, without much of a cushion to handle a lawsuit.
Instead of having to deal with the threat of lawsuits, why not just make sure you are not likely to be served with one?
Back Up Your Claims
While it’s tempting to talk up your items so you can get more people to be interested in them and hand over their money for a purchase, make sure the product you are selling can stand up to the ‘talking up’ you do.
If you claim your product will give particular results to users, and you are not positive it will give those exact results to everyone, make sure you mention that those results are "possible" or "reported in many users" but not guaranteed, unless you can offer a guarantee of the product.
While this may seem like common sense for someone selling their own product, what if you are a reseller? You are working off of the information that was given to you by the company that created the product.
You may not be able to vouch for the product personally. This means you need to be careful about the claims you make relating to it.
Protect Yourself
You should mention in your description that the claims made for the product are coming from the main company and not from you.
Finally, have someone do a "read test" for you. Find the most critical person you know and ask them to read over your descriptions. Ask them to look for anything that may seem inaccurate or that promises more than you can back up. If you have a friend who works in the legal field, they will be even better in this role.
Once you get through a few descriptions, and learn what’s safe and not so safe to put in, writing descriptions you can stand behind will start to become second nature, and your threat of being sued because of your product descriptions will shrink as well.
Tags: advice, avoiding legal trouble, business law, Generating More Sales, Leeia Ladipoh, legal, Sales, tips
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Avoiding Contract Disputes
Monday, February 11th, 2008
One of the hardest things to deal with in any business is a contract. Because they can be so intensive down to the minutest of details, more often than not they can result in contract disputes. Yet often it can also be the simplest of things that can lead to a contract dispute - that simple disagreement can lead to a costly court case and damages for the “hurt” party. So how can you avoid these disputes? Unfortunately, sometimes it’s easier said than done, but there are ways you can limit the potential of a contract dispute.
Don’t Go By Verbal Agreements
One of the biggest mistakes people make when coming to an agreement on contracts is going by what’s suggested verbally throughout the negotiation period. This is a common mistake, and one that many people make. Just because you’ve agreed in principle what both parties would like, it’s not worth anything legally until written down and signed for. If you do wish to make the early verbal discussions more binding, take notes and initial them as you agree on things - this can make a huge difference further down the line.
Keep It Simple
Whenever people mention contracts, they always automatically assume that it needs to be minute and detailed. While this can be true for many contracts, it doesn’t always have to be. Indeed, some of the best contracts around are also the simplest - after all, the more that something has, the more can go wrong with it. If there are areas of the contract that need to be more intense - usually the financial aspects - then make sure that both parties agree to any changes to how things are written. To be completely safe and protect yourself, you should always agree to have a contract put together with the help of a lawyer or similar. This will help avoid any confusion or disagreement later on.
Know The Terms
As mentioned earlier, one of the biggest areas for contract disputes is when it comes to the financial details. This is why it’s so important to have everything agreed upon and locked down; yet you need to make sure that you’ve agreed on the right thing - the last thing you want to do in a sale, for example, is lose money unnecessarily. You’d be surprised how many people get net and gross confused, and that can make a huge difference when it comes to any deal. So make sure you’re agreeing to the right financial terms.
Dealing With Contract Disputes
Despite your best efforts and intentions, there will always come a time when you need to deal with a contract dispute. If this is the case, there are a few options available to you. Firstly, always try and resolve with the other party. If this can’t be done amicably, you’ll then need to involve outside help. Before you go to your lawyers, try an arbitration or mediation service first. You can find these in your local business directory, or online. The Better Business Bureau is another option. If all this fails, then unfortunately you will have to involve your lawyers, but at least you’ll know you tried all other options first.
Tags: advice, business law, contract disputes, contracts, danny brown, legal, tips
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Hiring an Attorney to Take Care of Your Business Issues
Wednesday, January 30th, 2008
Many small business owners think that lawyers are only needed when a lawsuit arises or when a contract needs to be drawn up. Unfortunately, it’s that kind of thinking that can end up giving business owners some serious future regrets.
Instead of thinking of attorneys as professionals who fix legal problems, think of them as people who prevent problems from ever occurring. A good business attorney will guide you through every step of your business - from startup through expansion - and will ensure that your business’ best interests are kept in mind.
Why having an attorney can help you and your business
If you are in the beginning stages of your business, a good attorney can help you set up the right business model for you. He or she can help you decide if your company should be set up as a corporation, limited liability company (LLC) or a sole proprietorship - and what you need to do in order to keep that status.
If you are selling your own line of products or services, you may need help from a patent, trademark or copyright attorney to ensure that your ideas and designs are protected and are knockoff-proof. An attorney can also create a Non-Disclosure Agreement (NDA) for you so that you can safely discuss your idea with other companies, without the fear of someone copying or stealing your idea.
Of course, an attorney is your best resource for drawing up contracts and online privacy policies and double-checking your email campaigns to make sure that your business is complying with the CAN-SPAM Act.
Finding the right attorney for your business needs
The best place to begin your search is with the people you know - family, friends, neighbors, business associates, accountants, insurance agents, etc. Use your networking skills to compile a long list of recommended attorneys. Next, call each attorney on your list and set up a short phone interview. Let them know about your business and the goals you have for it. Find out if they have experience in your industry and with businesses that are similar in size to yours. A good lawyer will try to understand your business’ individual needs, rather than try to group you in a specific cookie-cutter business model format - inevitably leaving you with wasted time, money and documents.
After the phone interviews, you should be able to narrow your list down to two or three good prospects. From there, it would be a good idea to set up an initial consultation - many lawyers will give you this first appointment free - though it will be short, approximately thirty minutes. Since you’ll have limited time with each attorney, be prepared in advance and write down a list of questions and ideas you want to go over.
At $200-$400 an hour, your attorney’s advice, wisdom and document preparations may not be cheap, but it’s possible he or she may save you from lawsuits and lost business in the future. The good news is that every invoice is a business expense that you can deduct on your next tax return!
Tags: business law, Carrie Hinkel, hiring an attorney, legal, small business, Starting a Business
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What To Do When You Have To Sue
Monday, January 21st, 2008
Q: One of my vendors owes me about $5,000. I also think he defrauded me. Do you think it is worth it to hire a lawyer and sue or is small claims the way to go?
Ali
A: While I like to joke that I am a "recovering attorney," I still have plenty of respect for my old profession, warts and all. And when it comes to lawsuits, there are undoubtedly warts a plenty.
I understand and appreciate that there are all sorts of reasons to take a dispute to court:
* There is an emotional satisfaction that comes from not just taking it, from standing up for yourself and your business.
* There are the financial factors which are not insignificant. Few small businesses can afford to absorb a loss in the thousands of dollars and so the chance to get money you feel is rightly yours returned is a powerful aphrodisiac.
* Lawsuits can even serve as a warning to other businesses not to mess with you.
But we all know there are downsides to litigation:
* It’s expensive. Even hiring an attorney on contingency will eventually cost you about 40% of your settlement, that is of course, if you ever get one. And those $300 an hour cases are killer.
* There are no guarantees of success. As I always told my clients - your odds of winning are 50-50, even with the facts and law on your side. You never know what a judge will do.
* Worst of all, lawsuits are a pretty poor way to settle disputes. Endless discovery, motions and counter-motions, bored jurors - it’s a wonder anything ever gets resolved.
Especially because of the cost and uncertainty involved, if your case can be resolved in small claims court it is often the best way to go. But note: "Often" is not the same as always. If you have been defrauded for instance, you may want to hire a lawyer and go for it because the chance to recover a significantly greater amount of money is possible.
Large lawsuits are best when you have really been wronged, have the facts and law on your side, can prove your case, can afford it, and you have a defendant with pockets deep enough and who is culpable enough to sue. If all of those factors are present, then sue away. But if any are missing, think twice.
The other option is small claims court, which is a pretty great process for the small business person because it is an expedited way to get resolution without having to pay for a lawyer or wait a long time. Amounts that you can sue for vary by state, for example:
* Arizona: $2,500
* California: $7,500
* Delaware: $15,000
* Kentucky: $1,500
* Virginia: $5,000
If you are in Virginia for instance and someone owes you $7,000 it might just be worth it to sue for the $5,000 limit and call it a day. The time and expense it will take to recover that other $2,000 probably is not worth it.
Because you will be presenting your small claims case yourself, the key is to be organized and professional. In the best case scenario you will have documentary proof that the person in question owes you the amount you allege. You can only recover what you can prove, and if you have no proof you make the judge’s job much more difficult. Be polite and smart. The whole thing is really not a lot unlike Judge Judy.
So I say, enter into protracted litigation only when it really will make a difference and in any other case, go for small claims if you can. In the end you will probably be happy you did.
Today’s Tip: A book I like a lot that can help you out is Nolo’s, Everybody’s Guide to Small Claims Court by Ralph Warner.
Steven D. Strauss is one of the world’s leading small business experts. His latest book is the Small Business Bible . A lawyer, author, and public speaker, Steve has spoken around the world about entrepreneurship, including at the United Nations, and he has been on CNN, CNBC, MSNBC, The O’Reilly Factor, and many other television and radio shows. If you would like Steve to speak to your group, help your business grow, or if you would like to sign up for his free newsletter, "Small Business Success Secrets!" please visit his website � www.MrAllBiz.com .
Tags: advice, expert advice, law suit, legal, MrAllBiz.com, small business expert, Steve Strauss, suing, tips
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Determining Whether You Should Charge Restocking Fees
Monday, November 12th, 2007
Some companies accept a return on a product, but will then deduct a portion of the price (usually between 10% and 20%) for restocking fees. Over the years, restocking fees have gotten a bad reputation - customers think they are just another way for retailers to unjustifiably keep their money. However, when you take a closer look, restocking fees are really just ways for retailers to recoup some of the costs they incur when accepting a returned item.
There are definitely times when a restocking fee is warranted, and other times when it is not. Here are some examples of each:
A restocking fee should be charged when a customer:
Returns used merchandise - When a retailer agrees to accept merchandise that has been used or tested, that means they can no longer sell it as new. So, that product either ends up in the trash or sold as refurbished. Even with the restocking fee the retailer will, most likely, still lose money.
Returns opened merchandise - For certain items, once the packaging is opened, it can no longer be sold as new. Think of items like software and games that have plastic wrap on them. Also, for products that have been opened and with pieces moved around, these also cannot be sold as new. Again, they will either end up in the trash or being sold as refurbished.
Changes his or her mind - Whether or not a customer even opened the box, there are still plenty of additional costs that the retailer will incur, such as handling of the return - both over the phone and in the warehouse. These costs may not be as much as the other two examples listed, but they are still costs.
A restocking fee should not be charged when a customer:
Returns defective merchandise - If your product is defective, then your customer shouldn’t have any other costs associated with your product. If the item was defective upon receipt, your customer may decide he or she wants a replacement item or their money back. Since the problem was on your end, your company should cover all the costs associated with fixing the problem.
An important rule to follow: If you charge a restocking fee,
you MUST disclose that to your customers.
By law, you cannot just decide to charge a restocking fee after the customer purchased your product. Your customers must know about it before they place an order. You should state clearly on your website if you charge a restocking fee and what the fee is. Back in 2005, the Department of Consumer Affairs fined seven large companies (including Best Buy, Sharper Image and Bombay Company) for charging customers “restocking fees” without clear disclosure.
So, if you are thinking about charging a restocking fee on your website, you may well be warranted to do so. Just decide on a fair percentage for certain circumstances and clearly disclose your restocking fee policy on your website. That should help to avoid dealing with any upset customers regarding your policy.
Tags: Accounting, Carrie Hinkel, department of consumer affairs, E-Commerce and E-Business, Finance and Accounting, legal, money, restocking fees, websitem
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