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  Meyers Roman Friedberg Lewis LPA is here to protect your reputation and get the content removed. For more information, please feel free to contact Aaron Minc at (216) 831-0042 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 Meyers Roman Friedberg Lewis LPA 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.