Wednesday, May 9, 2012

How to Remove Defamatory or Offensive Web Posts About You Or Your Business On Sites Like "RipoffReport.com," "Cheaterville.com," and "The Dirty.com"

If you or your business has ever had anything posted about it on a website like RipoffReport.com, Thedirty.com, cheaterville.com, Scam.com, or other complaint boards, it is embarrassing and frustrating to say the least. 

The worst part about it is that even if the information in a post is blatantly FALSE and DEFAMATORY or concerns PRIVATE LIFE, section 230 of the Communication Decency Act ("CDA") provides website owners a complete legal defense for the content posted by third parties and no obligation to take it down. 

Ripoffreport, for example, has a policy that it will never take down content that is posted on its site under any circumstances. In the vast majority of circumstances, lawsuits against the company are useless.  

Luckily, I'd like to reveal a proven way that you can remove unwanted content from the internet so that it will NEVER SHOW UP IN SEARCH ENGINE RESULTS. The method for doing this is completely different than SEO techniques that only bury the content or paying off websites through "corporate advocacy programs" (that are really just "extortion").

So what's the secret? 

File a lawsuit and get an order from a court for an injunction for the delisting of the content from search engines like Google, Bing, and Yahoo. 

Here are the steps:

1. Consult with an attorney and file a lawsuit against the original author for whatever claims you have against them in connection with the posting of the report (defamation, disparagement, invasion of privacy, conspiracy, tortious interference).  Make sure your claims are legitimate. For example, truth is an absolute defense to defamation lawsuits. 

2. Win your case or obtain an agreement with the person you sue for a stipulated settlement.

3. Obtain a court order for the de-listing of the offending post from search engines. 

4. Present the court order to the search engines. 

5. Wait for the search engines to respond. Once they do the content will not show up in search engine results again!

Search engines provide this service at no cost. So the only costs are from litigation and court expenses. I just performed this service for a client and can definitely say that it works. Amazingly, the search engines responded and removed five different internet postings within 24 hours of the request and submission of the court order. 

If you are a victim of a damaging internet post about you or your business the law firm of Dinn Hochman & Potter, LLC is here to protect your reputation and get the content removed. For more information, please feel free to contact Aaron Minc at (440) 446-1100 or visit www.defamationremovallaw.com.


Wednesday, April 25, 2012

Tips On How Manufactures and Distributors Can Avoid Federal And State Franchising and Business Opportunity Laws and Disclosure Requirements


Complying with business opportunity disclosure requirements and franchise disclosure requirements is arduous and expensive! 

Manufacturers and distributors of products should take all precautions they can to avoid having the sale of their product be classified as a franchise or "business opportunity" under federal or state law.

Unfortunately, there is a VERY FINE LINE between what qualifies as a "distributorship", "business opportunity", and "franchise." If this fine line is crossed and disclosure requirements are not followed correctly, the penalties can be severe. Civil fines, injunctions, and other types of penalties are only the beginning. Some states have criminal penalties to sanction those who fail to comply.

I have compiled a simple list of tips that every distributor and manufacturer of products should NOT DO and AVOID to make sure that its business can avoid pesky and burdensome regulation.    

AVOIDING FEDERAL FRANCHISE LAWS AND DISCLOSURE REQUIREMENTS

Under federal law, three elements must be present for a business to be considered a franchise: (1) the use of a common trade name or trademark; (2) the payment of a fee of at least $500 (it can be as little as a one-time payment, or "indirect" franchise fee payment, such as the profits derived from the sale of product or services to a "licensee".); (3) the rendering of "substantial" assistance (This assistance can take the form of training, an operating system, marketing, purchasing, on-going advice, a proprietary computer program or other forms of support. Helping a "licensee" or "distributor" develop a marketing plan).  

If all three elements are present, then the relationship will be a franchise. Therefore, to avoid being a "franchise" AVOID doing one of the three requirements. This can be accomplished in any of the three following ways:

1. Do Not Allow Customers or Buyers of Your Product Use Your Trademark or Company Name -  In fact, it should be spelled out in all contracts and purchase orders that the buyer is prohibited from using your trade name as their own in any way, except to the extent that they state that they are an authorized distributor of your product.  

2. Do Not A Charge Any Fees Beyond the Price of Goods Sold - This includes payments for "exclusive territory", equipment, product displays, sales kits, advertising, etc.

3. Do Not Provide Significant Assistance or Exercise Significant Control Over the Buyer - Let the buyer run its own business. This is true even if they aren't running it how you want or as effectively as you believe they could. It is best practice to add a term to any contract or purchase order that the buyer is an independent contractor/business and is not an employee, affiliate, subsidiary,  franchisee, or other type of "associated" business. 

AVOIDING FEDERAL AND STATE BUSINESS OPPORTUNITY LAWS AND DISCLOSURE REQUIREMENTS

Currently, federal law and the laws of 25 states regulate "business opportunities." To see what qualifies under federal law, read my last blog post. What qualifies and is regulated as a "business opportunity" varies from state to state. Generally, if a business sells or leases a product or service that costs more than $500 or more to enable the buyer to get into the "business", the business may be considered a business opportunity seller if the business also meets one other additional requirement. Therefore, the following additional requirements should be AVOIDED:

1. Do Not Provide "Buy Back" Arrangements - If a program or seller "buys back" what the buyer makes, grows, breeds, assembles, fabricates, etc., and it is what the seller originally sold to the buyer, business opportunity regulation likely applies. A warranty for a defective good is not a "buy back arrangement."

2. Do Not Provide a "Sales or Marketing Program" - Do not provide buyers any "written or oral procedures or plan" on how to sell or market product or services.  Do not provide buyers training materials, sales or display equipment or merchandising devices, specific sales or marketing techniques, or sales, marketing or advertising materials that are intended for use by the buyer to influence a consumer to purchase a product or service. What constitutes a sales or marketing plan is very ambiguous! Consult with an attorney to discuss.  

3. Do Not Provide Site Location Assistance - Do not even give names of independent companies that can provide assistance. Let buyers find their own location to sell and market products.

4. Do Not "Guaranty" that a Buyer Will Profit From Its Investment - Also do not guarantee that you will refund all or part of the price paid or repurchase any of the products supplied by the seller if the buyer is unsatisfied with the business opportunity. 

5. Do Not Represent that there is a Market for Your Goods or Services - Luckily only a couple of states have this tricky requirement (California and Indiana). It is good practice to have an attorney examine marketing materials before they are distributed or used in these states.

As can be seen above, product manufacturers and distributors walk a VERY fine line between what legally is considered a "franchise", "business opportunity," and distributorship arrangement. It is important to have an attorney familiar with this area of law review all of your contracts and marketing materials to make sure that you are not inadvertently crossing over the line and breach state and and federal laws. The law firm of Dinn Hochman & Potter, LLC would be happy to discuss any questions that you may have regarding this area of the law.

Tuesday, March 6, 2012

FTC's New Business Opportunity Rule Has Taken Effect

On March 1st 2012, the FTC's new "Business Opportunity" rule took effect. The rule amends federal regulation governing the sale of business opportunities in the United states.

Under federal law, if your business offering qualifies as "business opportunity," certain mandatory disclosure obligations must be made to a prospective purchaser. As compared with former regulation, the new business opportunity rule significantly reduces a sellers disclosure obligations to a prospective purchaser.  The previous FTC rule provided that sellers offerings and solicitations needed to have disclosure statements containing twenty separate items of required information. Luckily, the new rule has reduced a seller's disclosure obligations to a prospective purchaser to a 1-page form requiring 5 items of information that the seller is required to disclose.

However, the new rule also applies to companies not currently covered by the old rule. These new companies covered by the rule include work-at-home programs, such as jewelry assembly and envelope stuffing.  

Under the new FTC rule, the definition of a "business opportunity," which would subject a seller to disclosure obligations contains three requirements:

(1)  The seller must solicit a prospective purchaser to enter into a new business (one in which he prospective purchaser is not currently engaged or a new line or type of business);

(2) The purchaser must make a "required payment." This means that some sort of payment is made by the purchaser to a seller or an affiliate as a condition to obtaining or commencing the operation of the business opportunity. There is an except for payment for the purchase of a reasonable amount of inventory at bona fide wholesale prices for resale or lease; and 

(3) The seller must represent, orally or in writing, that the seller, or some third party will provide any of the three types of assistance to the purchaser: (i) provide locations for the use or operation of equipment, displays, vending machines, or similar devices, owned, leased, controlled, or paid for by the purchaser; or (ii) provide outlets, accounts, or customers, including but not limited to internet outlets, accounts, or customers, for the purchaser's  goods or services; or (iii) buy back any or all of the goods or services that the  purchaser makes, produces, fabricates, grows, breeds, modifies, or provides, including but not limited to providing payment for such services as, for example, stuffing envelopes or jewelry assembly from the purchaser's home.
         
The new business opportunity rule exempts franchisers covered by the FTC Franchise Rule and multi-level marketing arrangements.  

If you are a business that offers franchises or business opportunities, it is important that you consult with an attorney in your state or local area to find out the exact disclosure requirements, prohibitions, record retention rules, and other state and federal laws which govern the sale of business opportunities in your location.  Laws vary in each state and there can be serious ramifications if they are not followed. 

 

Sunday, November 6, 2011

NEO, The Window to Potentially Save Thousands on Your Real Estate Taxes is Fast Approaching!!

Since the high in 2006, commercial and residential real estate prices have plummeted.

The average value of a home in the U.S. has dropped 31%! And most experts believe that commercial and residential prices will keep declining in 2012 as property values will head toward a "triple-dip."

While many factors influence the valuation of a piece of property, there may be a good chance that you could potentially save hundreds, if not thousands of dollars a year by contesting your real estate taxes.

If you wonder whether or not it is worth the time and effort to file a complaint with your county, consider that a $50,000 decrease in property value could save your business or household an estimated $1100 a year.  Consider that even a $20,000 reduction in value could save you an estimated $1000 over the next three years. Savings could be substantially more for owners of commercial/industrial property whose rent collections have dramatically decreased.

In these tough economic times, where every business and household is looking for ways to save money, everyone should take the time to evaluate whether their property is valued correctly.

The window to file a complaint to contest the valuation of your property is fast approaching.  In Hamilton County, Franklin County, and Cuyahoga County, complaints must be filed between January 1st and March 31st.

Don't miss out on your opportunity to potentially save thousands of dollars for your business or household.  Reevaluate the value of your property today!

If you would like help or assistance in determining whether to contest the value of your property or need help with the petition process, call Attorney Aaron Minc at the law office of Dinn Hochman & Potter, LLC for help. (440) 446 - 1100.

Thursday, October 13, 2011

John Coyle Commercial Docket Article


John Coyle, an assistant professor of law at UNC-Chapel Hill, just completed an article in which he considers the extent to which business courts such as the Ohio commercial dockets are likely to attract various forms of business – relocations, incorporations, and litigation – to a particular state. A brief summary of the argument’s basic points, are pasted in abstract form below.  The entire article is available for download at SSRN (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1928108).

The article seems like an interesting critique on one of the many possible policy rationales for creating commercial courts.  Best of luck to Mr. Coyle, from Ohio.



Abstract

"Business Courts and Inter-State Competition

Over the past two decades, nineteen states have established specialized trial courts that hear business disputes primarily or exclusively. To explain the recent surge of interest in these courts, policy-makers and scholars alike have cited the process of inter-jurisdictional competition. Specifically, these commentators have argued that business courts serve, among other purposes, to attract out-of-state companies to expand their business, re-incorporate, or litigate their disputes in the jurisdiction that created the business court.

This Article critically evaluates each of these theories. It argues, first, that business courts do not serve to attract companies from other states because business expansion decisions in the United States are rarely driven by the high quality of the courts in a particular jurisdiction. It next argues that business courts are unlikely to attract incorporation business because their core attributes are such that they are unlikely to compete successfully with the Delaware Court of Chancery. The Article goes on to argue that while the creation of a business court may in some cases serve to divert litigation business to local lawyers, the opportunities for diversion are relatively limited.

The Article then draws upon these insights to offer a number of suggestions as to how future business courts should be designed. It suggests that states should think twice before creating business and technology courts. It notes that major institutional reforms will be required if states wish to use business courts to attract incorporation business away from Delaware. It also identifies additional steps that states might take to more effectively attract litigation business. The Article concludes by briefly evaluating the viability of several non-competition-based rationales for establishing business courts."

Tuesday, July 12, 2011

Mentioned in Cleveland Plain Dealer & Crain's Cleveland Business for Participation in Record $1.12 Million Dollar Verdict

Very proud to have been involved in the case and contributed to the results.

AS POSTED IN CRAIN'S CLEVELAND MARCH 14 - 20, 2011

"CWRU law students reap client tidy sum
■ Case Western Reserve University School of Law students last month obtained the largest jury verdict in the Milton A. Kramer Law Clinic’s history: $1.12 million. 
     A Cuyahoga County jury awarded the money to a family victimized by a fraudulent home-repair and financing scheme. Three pairs of law clinic interns — most recently current third-year students Brant DiChiera and Jennifer Hadley — have handled the case since September 2008 under the supervision of clinic professor Andrew Pollis. The case was tried Feb. 10 before Cuyahoga County Visiting Judge John E. Corrigan. Mr. DiChiera and Ms. Hadley handled most of the trial, from jury selection to closing arguments. 
        Hearing the verdict read, and realizing the jury was granting the money requested and more, was exciting, said Mr. DiChiera, who’s set to graduate in May.
 “It was a great experience,” he said. “In this case, we had the opportunity to go all the way to trial, to have it in front of eight jurors. That’s something most law students never get to experience. “The economy for a lot of jobs is really terrible right now,” Mr. DiChiera added. “Obviously, this adds something on our résumé that not a lot of people are going to have.”
     The other students who handled the case are: Aaron Minc and Alix EmersonClass of 2010, and Nakedra Byrd and the late Michael Spivak, Class of 2009. The law clinic provides legal services to members of the community unable to afford legal counsel. — Michelle Park"


__________________________________________________________________________________

AS POSTED IN THE CLEVELAND PLAIN DEALER
http://www.cleveland.com/business/index.ssf/2011/03/case_law_students_win_landmark.html

"Case law students win landmark $1.1 million verdict in home-repair fraud case

Published: Thursday, March 17, 2011, 5:03 PM     Updated: Friday, March 18, 2011, 10:00 AM

The verdict itself was unusual -- a Cleveland family winning $1.1 million after they were ripped off in a home-repair and financing scheme. But if you consider who handled the case  --  two law students -- it was almost unheard of. Brant DiChiera and Jennifer Hadley, third-year students at Case Western Reserve University, won the largest verdict in the 40-year history of the school's Milton A. Kramer Law Clinic Center. The clinic is a way for law students to get real-world experience.
Less than 1 percent of civil cases even go to trial in state court, despite rising numbers of lawsuits filed, according to the American Bar Association.  The students also cleared another hurdle -- persuading Cuyahoga County Visiting Judge John E. Corrigan to seat a jury in the first place. Most judges in "default judgments" where defendants fail to answer the complaint simply hold a hearing and set damages. So the two third-year students were thrilled when the eight-member jury awarded Rosalia Clavell and her family all of the money the aspiring lawyers had sought - and then some.
"It was so cool," said DiChiera, 24, who hopes to work for a public defender's office after graduating this spring. "I don't expect to be getting a lot of big-time civil judgments. So in terms of my career, this could be the highest verdict I ever see." Watching Clavell's reaction "made it all worthwhile," Hadley, 26, said. "It kind of reminds you why you're in law school."
Law clinic facts
What: The School of Law at Case Western Reserve University has a law clinic for third-year students. The Milton A. Kramer Law Clinic Center actually includes four separate clinics -- in civil litigation, criminal justice, community development and health law.
Why: Law schools must meet accreditation standards that expose students to real-life legal work with real clients. Some schools meet the requirement with externships, where students work at agencies such as the public defender's office, Legal Aid or the IRS. Case Western has both externships and law clinics.
How: Ohio allows third-year law students who apply for a legal-intern card to practice law under the supervision of a licensed lawyer. Some states don't let legal interns practice law.
Who, students: Sixty-five third-year students out of each Case law class (200 to 225 students) work in law clinics for a full academic year. They spend 10 to 15 hours a week on clinic work, though hours can mount higher in complicated cases. Students take primary responsibility for the legal work, with a faculty member at their elbow.
Who, clients: The clinics focus on cases that involve people who won't be able to find suitable legal counsel, often because they're poor or start-up organizations.
Clavell does not yet have her $1.1 million, and it's possible she'll never get it. The companies involved have gone out of business. DiChiera and Hadley are now pursuing an owner of one of the defunct businesses.Clavell, who came to Ohio from Puerto Rico, worked as a maid and scraped together the money in 1997 to buy a former duplex on West 48th Street in Cleveland for $28,500. A decade later, she fell prey to the kind of scam that proliferated before the housing bubble burst.
Two companies -- North American Remodeling Inc. of Cleveland and Commonwealth Financial Services Inc. of Mayfield Village -- as well as owners of the companies, swindled Clavell through deceptive sales practices, false promises from a mortgage broker, fraud, negligence -- 16 counts, all told, according to the lawsuit Clavell filed in 2009. It all started one day in February or March 2007, when Clavell got a visit from a man holding out the promise of extensive home repairs with the help of an unspecified government program. It seemed like a godsend. Clavell, then 48, struggled with the upkeep of a home packed with family members -- her son, who was very ill, his wife, their two children and four other grandchildren.
The contractors later said Clavell wasn't eligible for the government program but could tap the equity in her property. It would require refinancing her existing mortgages by borrowing more than what she owed, paying off the old mortgages and using the rest for repairs. An appraiser set the value of the property at $75,000, almost three times its previously appraised value, according to the lawsuit. The defendants then arranged for Clavell to get a $75,000 bank loan to pay off her old mortgages and the $6,000 she was charged in settlement costs.
The bank wrote her a check for $29,857.88, the balance of what she had borrowed. Clavell signed over the entire amount to Commonwealth Financial Services to pay for the house repairs, with the assurance that Commonwealth would return any left-over money. The North American Remodeling repair crew showed up once, smelling of alcohol. The men tore out fixtures in the downstairs bathroom without replacing them. They damaged one of two furnaces, cutting off heat to the second floor. They pulled up floor boards, exposed nails and loosened ceiling tiles. When the crew left, the house was in worse shape than when they arrived. "Mrs. Clavell is now completing her fourth Cleveland winter with no heat in the upstairs portion of her house," DiChiera said.
Though the fraud seemed blatant, the law students had a complicated job on their hands. The file was 2 feet thick when they took up the case last August because it had already been worked on by two pairs of law clinic interns -- Aaron Minc and Alix Emerson, Class of 2010, and Nakedra Byrd and the late Michael Spivak, Class of 2009. A housing inspector testified, saying the mess at Clavell's home was among the worst cases of repair fraud he'd seen in 20 years. The students used photo blowups to show the shoddy work and disarray the contractors left.
Beyond that, the students had to persuade the jury that damages were justified even though some might think Clavell had only herself to blame for being bamboozled. Hadley had astutely ruled out one potential juror who held a strong "buyer-beware" philosophy. The woman mumbled several things after she was dismissed from the jury pool, said Andrew Pollis, the law professor advising the students. "I would have dismissed me, too," she said, and then she pointed at Hadley and said, "Nice job."
Hadley and DiChiera described during the one-day trial how the defendants initiated contact with Clavell as part of a door-to-door marketing scheme; persuaded her that neighbors were getting similar repair work done; and produced only English-language documents for her to sign although she spoke and wrote almost no English. In one pivotal moment, Clavell took the stand and, speaking through a translator, described the defendants as "silver-tongued." "They were con artists," Hadley said. "They had that gift of gab." The jury deliberated a half hour before returning to the courtroom with their decision to award $9,000 more than the students had sought for their client. Pollis, a visiting assistant professor of law who spent 18 years in private practice, said the verdict was probably the most satisfying of all the trials he has been involved with. "When I see students like this shine," he said, "I feel like the luckiest guy in the world.""

Thursday, January 6, 2011

Effect of a Company Merger or Consolidation on the Enforceability of Non-Competition Agreements Under Ohio Law

Under Ohio law there are many different factors that control whether a non-competition agreement is enforceable. Enforceability may depend on the reasonableness of the agreement, whether there is mutuality of obligation between the parties, or the industry or profession in which the agreement takes place. But are non-competition agreements still enforceable if a business consolidates or mergers with another company? This post covers a recent ruling by Ohio's First Appellate District that addresses this issue directly. 

In Acordia of Ohio, L.L.C. v. Fishel, 2010-Ohio-6235 (1st Dist. Hamilton Co., Dec. 17, 2010), Acordia, an insurance agency, filed an injunctive relief action against a competitor company and four former employees for violation of non-competition agreements that the employees had signed when they initially began their employment with the company.  However, Acordia was a company that was the product of various corporate mergers, and all of the non-compete agreements were signed with predecessor companies. In fact, Acordia was the product of 6 different mergers, acquisitions, or name changes over an eight year period.   

Under Ohio law, noncompete agreements transfer to a successor corporation in a merger or consolidation. Ohio Revised Code 1701.82(A)(3) specifically provides that "[w]hen a merger or consolidation becomes effective * *  * [t]he surviving or new entity possess all assets and property of every description, and every interest in the assets and property, wherever located, and the rights, privileges, immunities, powers *** each constituent entity." Therefore, successor companies inherit all assets and rights of the predecessor corporation, including the rights of any valid noncompete agreements. 

However, just because a successor company inherits the rights to a predecessor's noncompete agreements, this does not necessarily mean that they have the right to enforce them. In Acordia, the court looked at the specific language of the non-competition agreements of the predecessor business that the successor company had inherited. What the court found was that the agreements specifically prohibited the employee from competing only with the predecessor corporation and not the successor.  

More specifically, the court found that since each predecessor company had either changed its name or merged into a new organization, the time limitations attached to each non-competition agreement began to run at the time of each merger or name change. This happened because each predecessor company ceased to exist following each respective mergers. Therefore, the four employees employment with the predecessor companies was necessarily terminated at that time of each respective merger, which subsequently triggered the time period on each employee's non-competition agreement. 

When Acordia finally brought its lawsuit when its employees left for a competitor, all four of the non-competes had already been triggered and had expired. Accordingly, the court found the non-competes to be unenforceable. 

So what can businesses learn from this decision? Non-competition agreements can survive mergers and other business formation changes. However, the event of a merger or acquisition of a company can trigger the beginning of time limitations attached to noncompetes. If your company has recently undergone a merger, acquisition, consolidation, or some other change in business formation or name, check your business's agreements.  Make sure that the language in the agreement allows for some flexibility in its enforceability in the event of a change in form. Also, be proactive. Consider including specific language in agreements that take in to account the possibility of merger, consolidation, and acquisition.