Texas Court Paving the Highway for Abuse of Anonymous Authors’ Rights One Pre-Litigation Discovery Order at a Time: Glassdoor v. Andra Group

The United States has long held close to its heart the right for authors to speak anonymously.  However, protecting an anonymous author is getting more and more difficult these days.  The March 24, 2017 ruling by the Appellate Court for the Fifth District of Texas in Glassdoor, Inc., et al. v. Andra Group, LP certainly didn’t help either.

In my practice I see volumes of subpoenas sent to websites holding third-party anonymous content requesting the anonymous author’s identifying information.   Most of the time Plaintiffs file a John or Jane Doe defamation related litigation, which preserves the statute of limitations, and then they conduct limited discovery in order to ascertain who the proper defendants are and move forward from that point.  Typically, most states have some sort of notice requirement to the anonymous author that would provide them the opportunity to appear and defend their right to remain anonymous.  In the state of Arizona we have the controlling case of Mobilisa v. Doe, 217 Ariz. 103, 114-15, 170 P.3d 712, 723-24 (App. 2007).  It’s common for websites to raise objections on behalf of an anonymous author when the appropriate basic standards have not been met and, as I recently discussed in another article regarding Glassdoor, courts are ruling that websites like Glassdoor have the standing for the same.  This process, including giving author notice in a reasonable way, has always seemed fair to me.

Unfortunately, there seems to be a loophole that many Plaintiffs are taking advantage of, and it can be problematic for anonymous authors and websites alike.  I think that pre-litigation discovery tools (Illinois Rule 224, Texas Rule 202, etc.) are being abused in cases dealing with anonymous authors.   While I firmly believe that purposeful defamers and harassers should have the book thrown at them (i.e., fines, community service and/or educational requirements), often times the burdens on the plaintiff are not that high, it may not require notice to the author, and once an anonymous author’s information is revealed you can’t un-ring that bell.  I believe that pre-litigation discovery tools need either a very high threshold, have a notice requirements like that of Mobilisa or, alternatively, be barred in cases where a party is utilizing it to seek anonymous author information.

In this case Andra filed a Rule 202 petition against Glassdoor seeking to discover the anonymous reviewers’ identities relating to some ten (10) allegedly defamatory postings made about it.  Glassdoor, along with two (2) of the anonymous authors, filed an anti-SLAPP dismissal motion.  The trial court denied the motion and granted in part the Rule 202 petition which basically allowed Plaintiff to take the deposition of Glassdoor (even though claims against Glassdoor were not anticipated) regarding two (2) of the anonymous postings, not written by Glassdoor nor either Doe 1 or Doe 2, and was going to limit the deposition to five specific statements within those reviews.  Glassdoor and the anonymous authors understandably appealed the trial court’s ruling.

The Appellate court then skipped over the whole concept of anonymous free speech when it justified the trial court’s order by stating that “[k]nowing the reviews’ contents alone did not tell Andra [plaintiff] whether it had viable claims against the anonymous reviewers” and that “Andra also needed to know not only the reviewers’ relationships with Andra to evaluate potential defensive issues such as substantial truth.”  See Memorandum, p. 7.  Yeah, you read that right.  The balancing test on pages 8-10 are equally problematic and even through the trial court limited the deposition of Glassdoor to a handful of statements the author(s) of the selected statements still didn’t necessarily have notice nor necessarily the opportunity to appear and defend.  Even more troubling is the statement by the Court “[b]ut Rule 202 does not require a petitioner investigating a potential claim to show a probable right in relief on the merits.”  See Id, pg. 12.  Say what?  So a Rule 202 petition can be a BS fishing expedition, not give notice to an author of the BS fishing expedition, require a website to extend time and resources to sit for a BS fishing expedition and/or raise all defenses that may otherwise lie with the knowledge of an author, and that is all okay?  Who made up this batch of Koolaid?  How can the Court not see how this is paving the highway for abuse by plaintiffs?

You can review the entire Memorandum Opinion here: 

.

Until next time friends…

All information contained in this blog (www.beebelawpllc.blog.com) is meant to be for general informational purposes only and should not be misconstrued as legal advice or relied upon.  All legal questions should be directed to a licensed attorney in your jurisdiction.

 

 

 

Statute of Limitations is a real thing and why you, a client, should understand it.

In the last couple of weeks I have seen an increasing amount of demand letters threatening litigation or actual lawsuits based on alleged claims that are far outside of the statute of limitations.  A statute of limitations is the law which defines a period of limitation for bringing certain types of legal actions.  Most statute of limitations are between one (1) year and six (6) years depending on the claim.  When a lay person doesn’t know and sends the demand letter or files the complaint I can kind of understand that.  Some people don’t even think about things like that.  While ignorance of the law isn’t a real excuse, it is often looked at with a softer lens by many.  When it is an attorney who does this kind of stuff – I’m sorry, it’s absolutely not excusable.  Indeed, I have seen MANY attorneys make this mistake and it upsets me – not only because it makes other attorneys in the profession look bad but I also feel for the attorney’s client who probably paid for that mistake because they didn’t know better.

An attorney should not be taking a client’s hard earned money to draft a meritless demand letter or complaint!  If your attorney is worth their weight in salt they will spend the time necessary to do the research and will be honest and tell you when your case has no merit… not just take your money and set YOU up for failure.  In fact, such conduct isn’t in line with the Professional Rules of Conduct.  While states typically have their own rules of professional conduct, also known as the Rules of Ethics, it is pretty clear that the American Bar Association’s Model Rules of Professional Conduct, Rule 3.1, says this kind of crap is a no-no.  See the pertinent excerpt below:

Advocate
Rule 3.1 Meritorious Claims And Contentions

A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law…

It seems that the moment someone feels wronged  in some way someone, that person’s first line of thinking tends to be  “I’m gonna sue!”  I see that written and posted online all over the place or hear it in general conversation.  The problem is there are indeed times when you don’t have the legal standing to sue.  Some of the first questions to your attorney should include:

  1. What kinds of claims might I have given my situation?
  2. What are the applicable Statute of Limitations to those claims?
  3. Are any of my claims within those Statute of Limitations?
  4. Are there any viable exceptions to those Statute of Limitations?

If the answers regarding question nos. three and/or four above is “NO” then don’t ask your attorney to draft a demand letter threatening legal action for those claims and certainly don’t ask them to draft a complaint anyway.  Similarly, don’t let your attorney talk you into drafting a demand letter threatening litigation or actually filing a  meritless complaint.  You will only be footing the bill to fail – and filing fees, process server fees, and the time that your attorney will charge you to draft the bogus letter or complaint will only hurt YOUR pocket book.  And, to add salt to the wound, there is a chance that the Defendant could turn around and sue both you, and your attorney, for malicious prosecution.  It happens…and you could end up paying for not only your attorney’s fees BUT the attorneys’ fees of the other party as well.

Long story short – know the statute of limitations for bringing claims and don’t waste time and resources on frivolous demand letters and complaints.  It will save you a lot of time, money and other resources in the end.

If you are in Arizona, and have questions about statute of limitations for a particular claim in Arizona, feel free to contact me.

 

 

What’s in a Personality Test? Inside the Mind of Someone in the 8-12% ESTJ Category.

A few months ago I had the privilege of meeting a gentleman at a conference that explained to me his unique hiring process for his law firm. Instead of hiring and promoting based upon the traditional norms that one would expect he explained his philosophy for utilizing a personality test. Yes, that’s right, a personality test. As a person who has been in a position to do hiring and firing of employees and putting together teams – often moving people to coincide with their strengths so the can succeed rather than setting them up to fail – I was fascinated by this concept.  Truely fascinated. By the end of the short and casual conversation I felt that this guy had my personality pretty much pegged which made his comments regarding me being “rare” and “valuable” all the more interesting.  Apparently I was, in his mind at least, a “visionary” who also possessed the ability to “follow through.”

I’d like to think that I’m rather humble and maybe have a hard time accepting such compliments, especially when it comes to work, but this peaked my curiosity and I honestly wanted to know what it was that he saw that wasn’t so readily apparent to me. I didn’t see the significance. He then offered to allow me to take a personality test and visit with me about the results. I was absolutely interested and I almost couldn’t take it fast enough.  The results?  He was right!  The results suggested that I was indeed a visionary and a follow through person with the added near off the chart ability to adapt and work in a position that may not suit my personality for a long period of time and need for a high level of autonomy once I have mastered a task – which doesn’t take long for me.  I guess that explains why I’m not the “job hopping” type.  Sounds great, right?  Well, it depends on how you look at it, but for me, it kind of explains a lot about struggles I have experienced.

After taking his test (via the Culture Index) I really started digging in and trying to learn and understand more about what made me tick. I want to understand why I can butt heads with certain individuals yet have so many who have worked with me and under me say “take me with you” when I’ve considered a change in employment.  Accordingly, I began taking additional legitimate personality tests and studying up on my results.

Research suggests that people with personalities like mine make up only about 8-12% of the population.  This “executive” personality, also referred to as ESTJ by psychologists, is shared with people like Sonya Sotomayor, John D. Rockefeller, Steve Jobs, “Judge Judy,” Frank Sinatra and James Monroe.  At least I’m among some interesting company, right?  According to a test taken at 16Personalities.com I’m part of 11% of the population  with my ESTJ (-A/-T) personality.
Nevertheless, as cool as all this sounds, having this type of a personality can be both a blessing and a curse at the same time…but at least it is now making more sense.  16Personalities.com explains that “[s]trong believers in the rule of law and authority that must be earned, Executive personalities lead by example, demonstrating dedication and purposeful honesty, and an utter rejection of laziness and cheating, especially in work.”  Yeah, that last part is indeed a struggle for me.  I know when someone is being lazy or sort of halfassing something in order to just barely past muster.

Similarly, because I think of any group I’m part of as a team, the following passage from 16Personalities.com also makes sense: “Executives don’t work alone, and they expect their reliability and work ethic to be reciprocated – people with this personality type meet their promises, and if partners or subordinates jeopardize them through incompetence or laziness, or worse still, dishonesty, they do not hesitate to show their wrath.  For me, I don’t know that I would call it “wrath” per se, as I typically will handle matters as diplomatically as possible, but indeed I can see through BS and depending on the situation I may call someone on it.

Along the same lines, 16Personalities.com states that those with Executive personalities “show clear and consistent tendencies, and these are especially visible in the workplace. Whether subordinates, among colleagues or as managers, people with the [Executive] personality type create order, follow the rules, and work to ensure that their work and the work of those around them is completed to the highest standards. Cutting corners and shirking responsibility are the quickest ways to lose respect.”  This could not be more true for me. Not to say that a cut corner with a solid purpose won’t fly and may not even been encouraged when necessary, but when it’s to just be “good enough” without reason that I struggle with it.

I suppose it’s not all bad though.  Thanks to research, I have learned that the strengths of this personality of mine include (as provided by 16Personalities.com):

  • Dedicated – Seeing things to completion borders on an ethical obligation for Executives. Tasks aren’t simply abandoned because they’ve become difficult or boring – people with the Executive personality type take them up when they are the right thing to do, and they will be finished so long as they remain the right thing to do.
  • Strong-willed – A strong will makes this dedication possible, and Executives don’t give up their beliefs because of simple opposition. Executives defend their ideas and principles relentlessly, and must be proven clearly and conclusively wrong for their stance to budge.
  • Direct and Honest – Executives trust facts far more than abstract ideas or opinions. Straightforward statements and information are king, and Executive personalities return the honesty (whether it’s wanted or not).
  • Loyal, Patient and Reliable – Executives work to exemplify truthfulness and reliability, considering stability and security very important. When Executives say they’ll do something, they keep their word, making them very responsible members of their families, companies and communities.
  • Enjoy Creating Order – Chaos makes things unpredictable, and unpredictable things can’t be trusted when they are needed most – with this in mind, Executives strive to create order and security in their environments by establishing rules, structures and clear roles.
  • Excellent Organizers – This commitment to truth and clear standards makes Executives capable and confident leaders. People with this personality type have no problem distributing tasks and responsibilities to others fairly and objectively, making them excellent administrators.

I find all of these to be true, especially the last two.  I genuinely enjoy taking a business, observing its processes and figuring out how to make it more organized and efficient – especially if it results in a reduction in costs/overhead.  It’s just a skill that I have and one that I have used to create departments and implement policies and procedures for the same successfully.   In fact, if your company could use some help in this department, contact me for consulting! I’m happy to help!

At the same time, however, some of the typical weaknesses that I do recognize with my personality is that I can be considered stubborn or inflexible (especially without proof of concept) and I can find it difficult to relax.  A need for respect fosters a need to maintain dignity, which can make it difficult to cut loose and relax for risk of looking the fool. This is true in personal life and at work. Similarly, when it comes to work being done right, because I cannot accept shoddy or incomplete work, it’s not out of the ordinary for me to either send the work back to be fixed as many times as necessary or to just take it upon myself to fix the problem before it is presented. That need for respect and not wanting to look like a fool extends to work product as well for myself, my firm, or company I’m working for which means that if I am not careful, I can become overloaded and then feel overwhelmed.  Fortunately I am cognizant of these issues and I work on keeping myself in check.  Sometimes I’m better at it than others for sure.

All I can say is if you haven’t taken a personality test before, do it!  The test from 16Personalities.com had incredibly accurate results for me and the write up is quite interesting as you can see from some excerpts from this blog article.  Maybe you too will have an “Ah ha!” moment and have a greater understanding of how you operate and interact with others the way you do.  Who know, maybe through self evaluation you will realize that the job you are in now isn’t what’s best for you personality type and you may just decide to make a change for the better!  Life is short…find what makes you happy and feeds your soul.

Until next time friends…

Fighting Fair on the Internet – Part 9 |Troubles with Defamatory Online Reviews and Content Scrapers

Content scrapers are problematic for authors, defamation plaintiffs and website operators alike.

There is no doubt that there is typically a clash of interests between authors, defamation plaintiffs and the operators of websites who host public third-party content.  Authors either want the information to stay or be removed; defamation plaintiffs want information removed from the website(s); and website operators, such as many of the online review websites, fight for the freedom of speech and transparency – often arguing, among many other things, that the information is in a public court record anyway so removal is moot.  These kinds of arguments, often surrounding the application of federal law know as the Communications Decency Act, or Section 230 (which arguable provides that websites don’t have to remove content even if it is false and defamatory) are playing out in courts right now.  One example is the case of Hassell v. Bird which is up on appeal before the California Supreme Court relating to a posting on Yelp.  However, in spite of these clashes of interests, there does seem to be a trend emerging where the author, the plaintiffs, and the websites, are actually standing in the same boat facing the the same troublemaker.

Providing some background and context…

COPYRIGHT AND POSTING AN ONLINE REVIEW:  Many people are familiar with the term “copyright” and have a basic understanding that a copyright is a legal right that is created by the law that gives the creator of an original work limited exclusive rights for its use and distribution.  Wikipedia has some decent general information if you are interested in learning more.  For example, a guy who I will call John for the purpose of this story, can get on a computer and draft up a complaint about Jane and her company XYZ  before he posts it online on a review website.  As it sits on John’s computer as written, John would own the copyright to that information.  When John decides to post it online to a review website, depending on the website’s terms of service John may have assigned his copyright rights to the website in which he was posting on.  So either John or the website may own the copyright to that content.  That point is important for a few reasons, and there are arguments for and against such an assignment, but those issues are for another article some other time.

DEFAMATORY POSTING IS PUBLISHED ONLINE:  Continuing with the story, let’s say that John makes a bad call in judgment (because he hasn’t sat through one of my seminars relating to internet use and repercussions from the same, or hasn’t read my article on not being THAT guy, and doesn’t realize how bad doing this really is) and decides to post his false and defamatory posting about Jane and XYZ to an online review website.  It’s totally NOT COOL that he did that but let’s say that he did.  Now that posting is online, being indexed by search engines like Google, and anyone searching for Jane or XYZ might be seeing John’s posting.

WHAT TO DO WITH THE DEFAMATORY POSTINGS:  The internet tends to work at lightening speed and John’s post is sure to be caught on to by Jane or by someone who knows Jane or her company XYZ.  As an aside, I always recommend that people and businesses periodically, like once a month, run searches about themselves or businesses just to see what pops up.  It’s just a good habit to get into because if there is a problem you will want to address it right away – especially you think it is false and defamatory and want to take legal action because there are pretty strict statue of limitations on those – in many states only providing one year from the date of publication.  When Jane learns of the posting, maybe she knows who John is by what was said in the posting – and maybe she isn’t sure who posted it – but either way chances are she is likely going to seek legal help to learn more about her options.  Many people in Jane’s position will want to threaten to sue the website…but it’s actually not that simple.  Why?  Because unless the website actually contributed to writing the stuff, which they most likely didn’t, then they can’t be held liable for that content.  That’s the law here in the United States – the Communications Decency Act.  Fortunately, while online defamation is a niche area of law, there are many attorneys who are well versed in online defamation around the country that are able to assist people who find themselves in this kind of a situation.

So by now you are probably wondering how in the world a defamed party and a website could both be standing in the same boat.  I promise I am getting there but I felt the need to walk through this story for the benefit of those who don’t work in this field and have little to no clue what I am even talking about.  Baby steps…I’m getting there.

A FIGHT FOR REMOVAL:  As I pointed out in the beginning, arguably under the law, websites don’t have to remove the content even if it is found by a court or otherwise to be false and defamatory and that leaves plaintiffs in an awkward position.  They want the information taken down from the internet because it’s alleged to be harmful.  What can be done all depends on the website the content is on.

REPUTATION MANAGEMENT:  Many people think that reputation management is the way to go.  However, while reputation management can be helpful in some instances, and I’m not trying to knock those legitimate companies out there that can definitely help a company with increasing their advertising and image online, many find it only to be a temporary band-aid when trying to cover up negativity.  Similarly, in some cases, some reputation management companies may employ questionable tactics such as bogus DMCAs or fake Court Orders.  Yes, those situations are real – I actually just presented on that topic to a group of internet lawyers less than two months ago and I caution anyone who is using or considering a reputation management company that guarantees removal of content from the internet.

A WEBSITE’S INTERNAL POLICING:  The same law that protects websites from liability for third-party content is the same law that encourages self policing by providing for editorial discretion on what to post and not post.  As such, some websites have taken their own proactive approach  and created their own internal policing system where, depending on the circumstances and what was written, the website might find that the posting violated their terms of service and, within their discretion, take some sort of action to help a victim out.  Not every website has this but it’s certainly worth checking into.

COURT ORDERS:  Remember, a website, arguably per the law, doesn’t necessarily have to take a posting down regardless of what the court order says.  Shocking, but this has been found to be true in many cases around the country.  So what do websites do?  Here are a few scenarios on how websites might consider a court order:

  • Some websites will, without question, accept a court order regardless of jurisdiction and remove content – even if it is by default which can mean that the defendant didn’t appear and defend the case.  It’s worth while to note that some people won’t appear and defend because: 1) they never got notice of the lawsuit in the first place; 2) they didn’t have the knowledge to fight the case themselves; and 3) they didn’t have the resources to hire an attorney to fight the case – let’s face it – good lawyers are expensive!  Even cheap lawyers are still expensive.
  • Some websites will remove a posting only if there is some sort of evidence that supported the court order – like the defendant appeared and agreed to remove or even if there is a simple affidavit by the author who agrees that the information is false and is willing to remove it.
  • Some websites will only redact the specific content that has been found to be false and defamatory by the court based on evidence.  This means that whatever opinions or other speech that would be protected under the law, such as the truth, would remain posted on the website.
  • And still, other websites won’t event bother with a court order because they are out of the country and/or just don’t give a crap.  These types of websites are rumored to try and get people to pay money in order for something to be taken down.

COURT ORDER WHACK-A-MOLE WITH SEARCH ENGINES LIKE GOOGLE:  One of the biggest trends is to get a court order for removal and send it in to search engines like Google for de-indexing.  What de-indexing does is it removes the specific URL in question from the search engine’s index in that particular country.  I make this jurisdictional statement because countries in the European Union have a “Right to be Forgotten” law and search engines like Google are required to remove content from searches stemming from Europe but, that is not the law in the US.  The laws are different in other countries and arguably, Google doesn’t have to remove anything from their searches in the US.  Going back to our story with John, Jane and company XYZ, if Jane manages to litigate the matter and get a court order for the removal of the URL to the posting from search engine index, then, in theory, Jane’s name or company wouldn’t be associated with the posting.

Now this all sounds GREAT, and it seems to be one of the better solutions employed by many attorneys on behalf of their clients, BUT there are even a few problems with this method and it becomes a game of legal whack-a-mole:

  1. A website could change the URL which would toss it back into the search engine’s index and make it searchable again.  The party would either have to get a new court order or, at least, submit the court order again to the search engine with the new court order.
  2. If sending the Court Order to Google, Google will typically post a notice to their search results that a search result was removed pursuant to a court order and give a link to the Lumen Database where people can see specifically what URLs were removed from their index and any supporting documentation.  This typically includes the court order which may, or may not, include information relating to the offending content, etc.  Anyone can then seek out the court case information and, in many cases, even pull the subject Complaint from online and learn exactly what the subject report said and learn whether or not the case was heard on the merits or if the case was entered by default or some other court related process.  Arguably, the information really isn’t gone fore those who are willing to do their homework.
  3. The first amendment and many state privilege laws allow the press, bloggers, etc. to make a story out of a particular situation so long as they quote exactly from a court record.  No doubt a court record relating to defamation will contain the exact defamatory statements that were posted on the internet.  So, for example, any blogger or journalist living in a jurisdiction that recognizes the privilege law, without condition on defamation, could write a story about the situation, post the exact content verbatim out of the court record as part of their story, and publish that story online, inclusive of the defamatory content, without liability.

The up-hill battle made WORSE by content scrapers.

With all that I have said above, which is really just a 10,000 foot view of the underlying jungle, poor Jane in my example has one heck of an up-hill battle regarding the defamatory content.  Further, in my example, John only posted on one review website.   Now enter the content scrapers who REALLY muck up the system causing headache for authors, for defamation plaintiffs, and for website providers like review websites.

CONTENT SCRAPERS:  When I say “content scrapers,” for the purpose of this blog article, I am referring to all of these new “review websites” that are popping up all over who, to get their start, appear to be systematically scraping (stealing) the content of other review websites that have been around for a long time and putting it on their own websites.  Why would anyone do this you ask?  Well, I don’t know exactly but I could surmise that it: 1) content helps their rankings online which helps generate traffic to their websites; 2) traffic to a website helps bring in advertising dollars to the ads that are running on their websites; and 3) if they are out of country (which many appear to be outside of the United States) they don’t really give a crap and can solicit money for people who write and ask for content to be taken down.  I sometimes refer to these websites as copycat websites.

CONTENT SCRAPERS CAUSE HEADACHES FOR AUTHORS:  Many people have their favorite review website that they turn to to seek out information on – be it Yelp for reviews on a new restaurant they want to try, TripAdvisor for people’s experience with a particular hotel or resort, or any other online review websites…it’s a brand loyalty if you will.  An author has the right to choose which website they are willing to post their content on and, arguably, that decision could be based in part on the particular website’s Terms of Service as it would relate to their content.  For example, some websites will allow you to edit and/or remove content that you post while other websites will not allow you to remove or edit content once it is posted.  I’d like to think that many people look  to see how much flexibility is provided with respect to their content before they chose which forum to post it on.

When a copycat website scrapes/steals content from another review website they are taking away the author’s right to choose where their content is placed.  Along the same lines, the copycat websites may not provide an author with the same level of control over their content.  Going back to my John, Jane and XYZ example, if John posted his complaint about Jane on a website that allowed him to remove it at his discretion, it’s entirely possible that a pre-litigation settlement could be reached where John voluntarily agreed to remove his posting or, John decided to do so on his own accord after he cooled down and realized he made a big mistake posting the false and defamatory posting about Jane online.  However, once a copycat website steals that content and places it on their website, John not only has to argue over whether or not he posted the content on another website but also may not be able to enter into a pre-litigation settlement or remove it at his own direction.  In fact, there is a chance that the copycat website will demand money in order to take it down – and then, who knows how long it will even stay down.  After all the copycat website doesn’t care about the law because stealing content is arguably copyright infringement.

CONTENT SCRAPERS CAUSE HEADACHE FOR DEFAMATION PLAINTIFFS:  As discussed within this article, defamation plaintiffs have an up-hill battle when it comes to pursuing defamation claims and trying to get content removed from the internet.  It almost seems like a losing battle but that appears to be the price paid for keeping the freedom of speech alive and keeping a level of transparency.  Indeed, there is value to not stifling free speech.  However, when people abuse their freedom of speech and cross the line online, such as John in my example, it makes life difficult for plaintiffs.  It’s bad enough when people like John post it on one website, but when a copycat website then steal content from other review websites, and post it to their website(s), the plaintiff now has to fight the battle on multiple grounds.  Just when a plaintiff will make headway with the original review website the stolen content will show up on another website.  And, depending on the copycat website’s own Terms of Service, there is a chance that it won’t come down at all and/or the copycat website will demand money to have the content, that they stole, taken down.  Talk about frustrating!

CONTENT SCRAPERS CAUSE HEADACHE FOR REVIEW WEBSITES:  When it comes to online review sites, it’s tough to be the middle man…and by middle man I mean the operator of the review website.  The raging a-holes of the world get pissed off when you don’t allow something “over the top” to be posted on their website and threaten to sue – arguing you are infringing on their first amendment rights.  The alleged defamation victims of the world get pissed off when you do allow something to get posted and threaten to sue because well – they claim they have been defamed and they want justice.  The website operator gets stuck in the middle having zero clue who anyone is and is somehow supposed to play judge and jury to thousands of postings a month?  Not that I’m trying to write myself out of a job but some of this stuff gets REALLY ridiculous and some counsel are as loony as their clients.  Sad but true.  And, if dealing with these kinds of issues wasn’t enough, enter the exacerbators, i.e, the copycat websites.

To begin with, website operators that have been around for a long time have earned their rankings.  They have had to spend time on marketing and interacting with users and customers in order to get where they are – especially those that have become popular online.  Like any business, a successful one takes hard work.  Copycat websites, who steal content, are just taking a shortcut to the top while stepping on everyone else.  They get the search engine ranking, they get the advertising dollars, and they didn’t have to do anything for it.  To top it off, while the algorithms change so often and I am no search engine optimization (SEO) expert, I suspect that many of the original websites may see a reduction in their own rankings because of the duplicative data online.  Reduced rankings and traffic may lead to a reduction in revenue.

I like to think that many website operators try hard to find a happy medium between freedom of speech and curtailing over the top behavior.  That’s why websites have terms of service on what kind on content is allowed and not allowed and users are expected to follow the rules.  When a website operator learns of an “over the top” posting or other situation that would warrant removal or redaction, many website operators are eager to help people.  What is frustrating is when a website feels like they are helping a person only to get word days later that the same content has popped up elsewhere online – meaning a copycat website.  In some instances people wrongly accuse the original website for being connected to the copycat website and the original website is left to defend themselves and try to convince the person their accusations are inaccurate.  There is the saying of “no good deed goes unpunished” and I think that it is true for website operators in that position.

As the new-age saying goes “The Struggle is Real!”

I don’t know what the solution is to all of these problems.  If you have kept up with this Fighting Fair on the Internet blog series that I have been working on over the past year, you know that I REALLY disapprove of people abusing the internet.  I support the freedom of speech but I also think that the freedom of speech shouldn’t give one a license to be a-hole either.  I don’t know that there is a bright line rule for what content should and should not be acceptable…but as Supreme Court Justice Potter Stewart said in Jacobellis v. Ohio back in 1964 to describe his threshold for obscenity, “I know it when I see it.”  For me, after having seen so much through work and just in my own personal life, I think that is true.  My hope is that if I keep talking about these issues and hosting educational seminars and workshops in effort to raise awareness perhaps people may join my mission.  I firmly believe that we can ALL do better with our online actions…all we need is a little education and guidance.

Until next time friends…

 

Fighting Fair on the Internet – Part 7 | Freedom of Speech – the Double Edged Sword

If you’ve been keeping up with this Fighting Fair on the Internet blog series you know I believe that: the Internet sucks (well, it can suck); we as a society have lost the human connection and mannersopinions are like poop (we need more courtesy flushes); no one really likes the person who crosses the line onlinewords DO hurt; and that my hope is that people can dig down and make America KIND again…and that really goes for the rest of the world caught up in the three-ring circus without a ring-master that is life.  This of course begs the question: what is the root cause of the problem?  I could run a poll of 1,000 different people and I suspect I could get 1,000 different answers to that question.  So let’s look at one concept:  Freedom of Speech.

I know this is a huge topic and there is no way I could touch on all aspects but recently a situation occurred that made me look at both sides of the freedom of speech coin.  Sure, I have thought about it a lot – especially given the nature of my line of work – but this was different.  You know, the funny thing about freedom of speech is that rarely does one dislike it unless and until something is said or written negatively about them or it otherwise provokes negative emotions within.  And, I suppose it goes without saying, that what one person finds offensive will often not be the same, at least to the same degree, as the next person.  I believe that each person and their perspectives are shaped by their unique set of circumstances in life – upbringing, religion, education, and personal life experiences.  For example, one who may have been brought up in a family where there was domestic violence in the home may have a much deeper and more passionate emotion on the subject than one who didn’t have such trauma in their life growing up.  Someone could joke about it to someone that hasn’t experience it and it may come across funny.  However, the same joke to the person who has experienced it may not find it so funny.  The thing is, there really is not a “bright line” rule and therefore leaves a lot of room for disagreements.

Let’s look at freedom of speech in a social context:  Typically if something is said more generally – it’s likely to be less offensive to an individual.  Someone might say “I don’t like the president!” and while some people may disagree with that opinion they are not likely to take it personally.  That’s because  it’s not about them personally.  But what happens when criticism is directed towards a specific individual?  I don’t know a single person that likes criticism of any kind.  True, some people take criticism better than others but still, even constructive criticism, can take a toll on one’s emotional well-being depending on how the information is presented.

I don’t think Newton’s Third Law: “For every action there is an equal and opposite reaction” applies only to motion.  Think about kids on the playground; one kid says something mean or does something mean to another kid, the first reaction, right or wrong, for the kid on the receiving end is to do something mean back – whether it be harsh words or physical violence.  The internet has, in many respects, become a giant sandbox full of bratty little children – except, most people interacting online aren’t “children.”  Someone expresses their negative opinion, or worse – maybe makes up some kind of total BS, about someone online and then what happens?  The person who got called out, out of hurt feelings and anger, will likely come up with something equally as mean, or worse, back.  It’s like a perpetual fight that never seems to end, and, worse yet, the playground fight is online, for all to see, FOREVER.  Then what sets in is the fools remorse that I talk about in my presentations and briefly in my article that speaks on the topic of crossing the line online…and many times there isn’t much that can be done about it.  You can’t un-ring a bell.

Final thoughts:  Be careful with your words in person, and especially online.  It’s okay for you exercises your free speech right to voice your opinion about things, but if you do it about someone specifically, right or wrong, you should be prepared and understand that there is a good chance that the person who you wrote about may exercise their freedom of speech, possible with “playground tactics,” to come back with the same, or even worse, reaction.  And remember, not all opinions are created equal.  Sometimes it’s okay to give an opinion a “courtesy flush.

Until next time friends.

 

 

Entrepreneurship can be a lonely place.

Regardless of which side of the political fence you are on (or maybe sitting in the stream in the middle) one can’t help but notice how the general public seems to point fingers and utilize one’s personal love life, or the lack thereof, as some sort of measuring stick for their perceived abilities to be a strong leader in business and/or the political arena.  To those who do the finger pointing in this manner, I ask you the following: Have you actually ever been a successful business person?  While perhaps I am over generalizing here I am going to go out on a limb and will guess not because, the truth is, entrepreneurship/business leadership can be a very, very, lonely place.

For the purpose of this article I will refer to entrepreneurs, however, this really could apply to any higher-up type business leader.  The responsibilities and worries for a entrepreneur/business leader are very different than that of the time clock punching worker-bee.  Not that there is anything wrong with being a worker-bee but my point is, the worker-bee goes to work, turns on the lights, clocks in, does their designated duties for the set shift for the day, clocks out, and then goes home…with free time to do whatever thereafter…inclusive of spending time with family.

By contrast, the entrepreneur, typically doesn’t have that kind of luxury.  The entrepreneur is concerned about keeping the lights on, the equipment maintained, the staff paid and employed…and all of that encompasses ways in which to keep the business thriving. While you are at home spending time with family and friends, and getting sleep, the entrepreneur is up late nights educating themselves on market trends, and trying to navigate changes in industry.  The entrepreneur is up looking at their competitors to figure out how to do things “better.”  The entrepreneur is trying to come up with the next “big thing” to help them grow and become more…so that maybe the company can afford raises or better equipment for its staff.  Even if the entrepreneur has reached a point where they have people to help them with some of these tasks, there is still the challenge of managing people which can be downright exhausting!

With all that the entrepreneur has to worry about, it is no wonder that so many may have a hard time keeping personal relationships a-float.  I myself am guilty of the “just a minute baby, only one more email and then I will come to bed” and then three hours later I head upstairs…usually with the phone in hand to check on different accounts.  Meanwhile my other half has been home for six hours, asleep for three, and I have sucked at paying any attention to him because I have let myself be drawn in and distracted by my work projects.  True, it’s a personal thing I am working on, and I’ve gotten a lot better…but it does still happen on occasion.  Indeed, it takes a very strong partner to understand the demands that are placed on the entrepreneur…and an even stronger one to accept how lonely a relationship with an entrepreneur can be.  To the entrepreneur, that business or project is their baby, which often times means they sacrifice the “typical” relationships for it.  Further, it’s not uncommon for people involved in an entrepreneur to give up because they need more out of the relationship that the entrepreneur can give, and that’s okay too. This, however, does not mean that the entrepreneur is a bad person or a bad business leader…in fact, it could mean the very opposite; that the entrepreneur is willing to sacrifice their personal relationship life for the greater good of their business.  Of course I always advocate for finding balance…but some times that is easier said than done.

Bottom line, when it comes down to it, before you go pointing fingers at people based upon your perception of their failed love life and what that means for them as a business/political leader…I ask you to consider what I just wrote and remember, entrepreneurship can be a very lonely place.

Just some food for thought, friends.  I’d be interested to hear your feedback and experiences.

 

Don’t be an E-BAG

Are You a “Chatty Cathy” Via Email?

Do you remember back when businesses exchanged typewritten letters to one another and if some one wrote back to you within a weeks time that was considered very responsive? How about the days when people would actually pick up the phone or got together for a meeting to discuss important topics that would require a back and forth conversational dialog.  Where did that go?  Oh yeah…technology.

Many times I have said that technology is a blessing and a curse.  I have opined how technology has contributed to the loss of the human connection and manners.  One day I may even write about how I believe technology is actually creating more stress for people…because you are always tethered by it and are expected to be “on” all of the time.  It’s exhausting just thinking about it.  In that same vein comes this wonderful technology that we call “Email” which is becoming incredibly abused.  Rather than just using it to send legitimate “need to know” information, and keeping the communications on point, it seems that many are now using email to hold a conversation in lieu of picking up a phone or scheduling a meeting that would allow for regular dialog.  For comedy, and not with any ill intent, I like to refer to these types of people as E-Bags.

POINT OF REFERENCE:  Let’s be clear about the angle I am coming from.  As a lawyer and entrepreneur I maintain multiple e-mail accounts for business and receive hundreds of e-mails a day.  I want to ensure I am receiving all of the legitimate information that I need in the shortest amount of time possible.  This is why E-Bags are a personal pet peeve of mine.

Five reasons why using email for conversations, generally speaking, can be a bad idea:

  1. Time is money!  It takes a long time to write out paragraphs of information and if you go back and edit at all, you are looking at 30-45 minutes for something that could have been said in five minutes on the phone.  If you are business billing your customer/client for that time, maybe you don’t care…but if you are the customer/client, you could be paying someone to read emails about your whatever, off topic, conversation.  Seriously.  Think about that.
  2. Everyone’s time is valuable!  Chatty Cathy conversations, especially when there are more than two participants in an email string, do nothing by waste time and irritate people when they have to read through your messages to see if there is anything important that pertains to them directly.  When you start pissing people off, naturally, they aren’t going to pay much attention to your communications in the future.
  3. People get too many emails to keep up!  If you chat away via email you are running the strong possibility that your communications will get overlooked.  If you are a known chatter, even when you provide very important information or a request in your communication, it can be overlooked because the recipient may assume that you are just chatting again and won’t read your email or will, at best, merely skim it.  The chances of your important information getting lost increases dramatically.
  4. Conversation emails are like dumping trash on top of small presents in a bag.  When you use email as “chat” you are basically littering in your own inbox.  You are dumping “trash” on top of the important things which can make them harder to find.  This is especially true if you manage an email account that has a high volume of incoming email to begin with.
  5. The written word, especially when written in a hurry, can be perceived in many ways that was unintended.  When I present to students and adults I explain how one single sentence, with only seven words, can be interpreted seven different ways depending on the emphasis that the reader places on any particular word.  This can lead to a break down in communication and lead to more relationship and communication problems that could have been avoided through a phone call or a meeting.  Never underestimate the power of being able to hear voice tone, word inflection and/or pick up on body language.  You can’t get those things from the written word.

Three instances when engaging in conversation via email can be a good idea:

  1. When you are making introductions.  If you are making an introduction between your self and someone else, or maybe you are connecting two people who have never met before, conversational email communication is probably going to be expected.  You are trying to open a free flow of friendly dialog so that they can get to know one another.
  2. When your entire relationship is based upon email.  If you have never met a person, or perhaps have never even communicated with a person over the phone, then, in that case, being conversational is appropriate.  It can connect you and provide opportunity for dialog when other communication mediums are not available or appropriate (think an online forum for example).
  3. When your customer/client expects it and is willing to pay for your time.  Some customers/clients are just long winded, they have lost the human connection so they don’t like actual phone or in person conversations, and they EXPECT to communicate via email primarily.  In this case, if that is what your customer/client wants, then by all means…go for it.  Just be sure to let your customer/client know, up front, that they will be billed for such communications.  Again, time is money and your time is a valuable commodity that you cannot ever get back.

If this resonates with you (because maybe you are a conversational emailer) or maybe because you share the same frustration with conversational e-mailers, be sure to chime in with your #EBAG experience.  I’m only writing from what I see personally but am always open to other perspectives and learning.

Clicking the “I Have No Idea What This Says” Button

Understanding the basic differences between Browse-wrap and Click-wrap Agreements

Welcome to the age of technology…where everything you do is pretty much online!  You meet people online, you keep up with loved ones online, you post comments online, download software online, you purchase  online, etc.  For every website platform you interact with there should be some sort of Terms of Service (TOS) or Terms and Conditions (TAC) that you will have to agree to.

So yeah, that little box that you checked quickly so that you could move on and see more information, or download your favorite song, etc., that stuff is the important stuff that you just AGREED TO that NO ONE ever really reads.  Well, except for maybe a few of us contract lovers and people looking for the “easter egg” of comical interruption alleged to be contained within the long winded legal mumbojumbo.  Turns out, at least in my experience, those allegations are fake.  Rarely do I see any humor in contracts.  I know…so BORING!

There are typically two different types of agreements – the Browse-wrap and Click-wrap.

THE CLICK-WRAP AGREEMENT

The more common agreement, the click-wrap agreement (also referred to as a “clickthrough” agreement or a “clickwrap license”), is the one that I generally referenced above.  It’s the agreement that actually requires you to take some sort of action, like clicking on an unmarked box, to show that you agree to the terms set forth by the website or platform.  If you think about it, the website is literally placing the website’s TOS right into your hands (for reading) and asking you to acknowledge the agreement by “clicking the box” or whatever other form that assent may come in.  If you want to refuse the agreement (who does that?) then one would cancel or  close the window to the subject website.  Courts typically uphold these kinds of agreements so remember when you are clicking you are probably entering into a legally binding contract.

THE BROWSE-WRAP AGREEMENT

Your browse-wrap agreement (also called a browserwrap or a browse-wrap license) is the other version.  Generally your browse-wrap agreement is located somewhere on the website; usually seen as a hyperlink at the bottom of the page to the TOS or TAC.  There is no “clicking” to manifest their agreement to the website’s terms.  The idea behind this is that by a person’s mere use of the website they agree to the websites terms.  Courts have been reluctant to uphold these types of agreements UNLESS the user has agreed to the terms.

BELT AND SUSPENDERS

Most websites these days, especially where they are interactive, will have BOTH a click-wrap agreement and a browse-wrap agreement tied to their website.  This is done so that the website can inform users of their website’s TOS/TAC but also, for legal contracting purposes, to aid in enforce-ability of those terms.  Contracts, in order to be upheld, require mutual manifestation of assent.

If you are a website owner, you want to be sure that your agreements are protecting your interests and you should consider seeking legal counsel on the matter if you have any questions.  Beebe Law, PLLC is an Arizona based law firm representing clients in the state of Arizona.

 

 

Online Negativity: A Potential Pitfall to Your Otherwise Perfect New Business Name

For many entrepreneurs, coming up with the right business name can be hard.  After all, you want it to be catchy and tell people what your business is about.  You might want some eye catching creative logo to go with it too.  You also want to be able to link that business name and logo with the internet, i.e., domain names, social media, etc.  Equally important is making sure all of these creative things (name, logo, etc.) are unique to you and your company, otherwise you could face intellectual property challenges down the road.  No one wants to make that costly mistake!  Perhaps you even engage an attorney to help ensure that all of these things are set up right and check out just to be sure.  When all of these things are on track you might feel like you have got the green light and you are off to the races!  Or are you?

One of the pitfalls I see in business is people starting businesses with a GREAT business name only to later find out that somewhere someone else has (or had) a same or similar business name with a bunch of negative online articles or reviews about it!  As many of us are aware, stuff on the internet stays around for a long time…as in forever in some cases. Basically, even if the business has long since been done and gone, those articles and reviews may still be around…possibly at the top of search engine listings.  Even worse, people who don’t pay that close of attention, perhaps prospective customers, might think that the old business name (and crummy article or review) that had nothing to do with you are one in the same with your business!  This is true even if you have different locations, different logos, and do totally different types of business!  Yes, a few unfortunate issues with our society (generally, not all) are: 1) people don’t typically read (they skim at best); and 2) people sometimes think everything on the internet is the truth without second guessing the information or where it came from!  Yikes!  Talk about a bad combination and potential for an online reputation nightmare for your new business – especially if your prospective customer doesn’t play that close of attention to details…like the fact that you aren’t that other business with the old articles, etc!  To top it off, solutions aren’t as easy as writing the websites that are hosting the articles/reviews and asking them to take them off.  In most cases, that won’t work and, generally speaking, they don’t have to.

PRO TIP:  When doing your due diligence for your business name, in additional to all of the intellectual property considerations, you should also consider running searches on top search engines like Google to see what, if any, negative information you can find on the internet using the name of your company and names closely related to your company, e.g. Frosty Ice Cream vs. Frostys Ice Cream, etc.  Going in with your eyes wide open as to what problems are present, if any, will help you determine if you want to consider other business names OR maybe at least consider some social media campaigns or other options that will help educate and differentiate you from the other(s).

If you not sure how to go about these kinds of searches, you are encouraged to speak with a Business Attorney in your area who can assist you or perhaps a trusted Reputation Management consultant (though do your research before you hire anyone).  Anette Beebe is the managing member of Beebe Law, PLLC which is an Arizona based law firm representing clients in the state of Arizona.

 

 

Contracts: The Hidden/Overlooked Master Agreement

I have had more people come to me, explain a situation, and then ask me if they have to perform a certain task as part of some agreement or argue that they didn’t intend to be bound by the agreement.  My response:  Do you have a contract and what does it say?  It sounds pretty cut and dry, but for some, this is a real struggle and often times people will gloss over the agreement, and sign it, without really paying attention to the terms.  If this is you, don’t feel bad, you are not alone.  Countless times I have had clients bring me a Scope of Work or Purchase Order and tell me “this is the agreement” to which I ask, “Where is the rest of it?”  You can imagine people’s confusion when I ask this question, especially when they think THAT is all there is.  Unless you are dealing with someone that doesn’t understand contracting, chances are, there is more…you just may have overlooked it.

MASTER AGREEMENT:  A Master Agreement is the main portion of the Agreement that often outlines what some all the “boilerplate terms.”  Most people overlook this section and don’t negotiate the terms.  However, you should not overlook the “boilerplate terms” because they can be very important.  The “boilerplate terms” often outline payment terms, duration of agreement and renewals (like automatic ones), warranties, choice of law/jurisdiction, dispute resolution, damages for failure to adhere to the contract, intellectual property rights, etc.  A person’s failure to overlook these types of terms can be detrimental if not carefully reviewed and considered.  If you are curious about what kinds of issues can be present in “boiler plate” contract language, you can read my prior blog post Contract Terms: The Boilerplate Language IS Important.

ORDER FORM:  The Order Form is typically the portion of the agreement that outlines the client/customer specific information which are typically negotiated between the parties. This is typically why it receives the most attention.  These documents typically incorporate by reference the Master Agreement (which might be provided as a simply link to a URL online).

  • PURCHASE ORDER:  A Purchase Order (“PO”) is commonly used where the Master Agreement contemplates a purchase/sale of goods.  This will typically outline the types, quantities and agreed upon prices for products and/or services that may be associated, payment method and scheduling for the same and method of shipping, and includes any special requirements or other miscellaneous that the Master Agreement may not contemplate or you otherwise negotiate for (such as a change of a term under the Master Agreement).
  • STATEMENT OF WORK:  Statement of Work (“SOW”) is commonly where the Master Agreement contemplates services to be provided.  This will typically define the scope of the activities to be completed, the location of the work to be performed, period of performance, itemize deliverables and what timeline exists in connection with those deliverables, pricing, payment method and schedule for the same, any standard regulatory or governance terms and conditions, and includes any special requirements or other miscellaneous that the Master Agreement may not contemplate or you otherwise negotiate for (such as a change of a term under the Master Agreement).

Unless you are a contracts attorney who loves the fine print (and maybe we don’t even really love the fine print but at least we can understand it) you may be tempted to only focus your attention on the Order Form document, however, as discussed it is incredibly important that you read through all of the terms of any Master Agreement in connection with any Order Form to make sure you don’t get caught off-guard.  It’s always good practice to inquire about a Master Agreement when presented with nothing more than a Order Form…and keep the two documents together.  Don’t just rely on the information you can read in a URL link because you never know when the Master Agreement at that URL will change.  It’s better to trust your own records than to rely on someone else!

If you are unclear as to whether or not the boilerplate language is appropriate for your situation, and you want to work through the issues, you are encouraged to speak with a Contract Attorney in your area who can assist you.  Beebe Law, PLLC is an Arizona based law firm representing clients in the state of Arizona.

 

Your Social Media Could be Damaging to Your Professional Goals

Technology is all around us and chances are you probably have some level of interaction with Social Media.  For example, you might have a Facebook, Instagram, Twitter, Pinterest, Tumblr or some other online blog, etc.  Further, if you are the normal person, you probably post and interact freely without really considering consequences of those interactions and THAT is what I am discussing here.

I’d like to think that most people are pretty good at self policing and watching what they say online, however, as I have eluded to in my blog series “Fighting Fair on the Internet” that isn’t exactly the case.  Through my own personal and business experience I have come to find that people can be very dark and spiteful.  There is something about the internet that can bring out the worst in people…kind of like booze.  I believe there are a whole host of reasons for that, some of which I discuss in my blog series, however what remains true is that people are now, more than ever, being very “free” with their emotions (positive and negative) and their personally identifying information.  Not only does this behavior present some level of risk from a security standpoint, but also a risk to your professional goals.

Some studies suggest that 77% – 80% of employers will “Google” (meaning run a search using the popular search engine, Google) a perspective employee prior to a job interview.  Chances are, the statistic is probably similar for any person looking at anyone, for any position, in today’s market.  What is your name associated with?  Typically it will be associated with professional websites like LinkedIn and social media accounts such as Facebook where you place particular information out there for the public view.  In other instances it could be attached to anything else that you have been tagged in, had your name mentioned in, and/or your information has otherwise been placed in the public domain.  Do you know, for sure, what that information looks like? Does that information, to the eye of the most strict and ultra conservative individual, give a positive or negative impression of you?

If you feel like you are being turned down for opportunities and you aren’t sure why…maybe it’s time for “check up” on your personal social media presence.  The easiest way to do this is to simply run a search for your name, or names that you are known by, via a popular search engine like Google.  Another avenue would be to go to the particular social media outlets that you use and check to see what is visible to the public.  For example, on Facebook, you can (at least as of this writing) go to Settings, Followers, then “Want to know what followers can see?  View your public timeline.”  That should show you what people, who are part of the general public, can see about you.  Does it give out more information than you would want any perspective employer type person learning about you?  If you aren’t sure whether or not the information might be perceived poorly, ask a friend or family member.  If you (or your trusted friend) don’t like what you see, and you have control over the information*, start working on a social media clean up.  For a whole host of reasons, you will be glad that you did!  As my wise grandmother use to say, “it’s okay to maintain a little mystery.”

For those of you who read this and say “…but what about information that I don’t like that is outside of my control?” understand that topic is a whole other beast, reserved for a wholly separate set of blog postings, on a totally different day. 

 

We Rise by Lifting Others…

WE RISE BY LIFTING OTHERS…  It would be accurate to say that I have been a “gym rat” on and off since the late 90’s.  Accordingly, per my fairly typical routine, I got out of bed and drug my butt into the gym this morning to throw around some weights.  As you all are aware, the gym is a great way to keep physically and mentally healthy because of the ability to strengthen the body and release hormones that help reduce anxiety and stress…and I highly encourage everyone to exercise routinely…especially if you have a high stress job; but today I received a different kind of benefit that I often overlook.  Today I received the “warm fuzzy” from knowing that I was able to encourage and lift the spirits of a complete stranger.  I didn’t do anything special other than take the time to visit and share some insight and wisdom on a topic that this person was struggling with and, in return, I was rewarded with the opportunity to be genuinely thanked for my time and probably made a new friend.  This small interaction got me thinking:  It’s amazing how good it feels to rise because we were able to lift someone else up.

In today’s world where it seems that most relationships are based upon superficial communications through electronics, coupled with the accompanying demand for immediate attention and instant gratification in ways that most of us have obtained through learned behavior over the years, it’s important to stop and be remember to be human!  I mean REALLY human.  We all have the same basic needs.  We all have struggles that are often hidden.  It’s important to remember how to, and practice often, the seemingly lost art of actual, genuine, human interaction.  Take time to listen to someone, in person, and, if you are able, provide meaningful feedback.  The greatest gift you can give someone is your time because it is something you can never get back…and the greatest return is the feeling you receive from actually “being there” for someone which is a gift that no one can take away from you.

So in other words … #BEMOREHUMAN.  Practice this in your personal life with those you care about.  Practice this in your business life with the relationships that you value.  What you give out will come back to you so make it amazingly meaningful.

 

 

 

Contract Terms: The Boilerplate Language IS Important

Every day people and businesses enter into contracts for one reason or another.  If you are running a businesses you likely have contracts that you have your customers/clients sign which outline the obligations of each party.  Most people only really consider the “meat” of the contract…you know, the who, what, where and when; but what about all of that “lawyery stuff” at the end?  Many people will put boilerplate language into their agreements without knowing what implications those clauses will have on them if either party fails to live up to the terms of the agreement.  Similarly, people will sign a contract without paying attention to all that “lawyery stuff” at the end because…well, it’s boring and can be hard to understand.  Does all that boilerplate language really mean anything?  Yes!  Especially if the person drafting the contract may have just cut and paste clauses off of something they found on the internet without really understanding how those things would be applied when things fall apart.

Sure, it seems easy to just cut and paste and/or use prior agreements and roll them over into a new situation…but it may cost you more in the long run if and when something goes wrong.

The boilerplate language at the end of your contract are important for a few reasons:

  • They are real contractual terms that have to be understood
  • They impact your legal rights as to the agreement
  • They can actually control or limit the enforcement of your contractual rights
  • They can, perhaps unintentionally, void portions of your contract that you might have already negotiated in your contract

What are some of the “boilerplate clauses” that are typically at issue in a contract?  The following are a few clauses that are important to review:

  • Choice of Law and/or Choice of Forum Clauses
    • These can define the law that will govern the contract which can get sticky if your contract is contrary to this clause.
    • These can define the place that the contract can be enforced which may or may not be favorable to you.
    • These may limit your rights to sue in certain kinds of courts.
    • These may subject you to a certain jurisdiction regardless of whether or not you happen to live or have minimum contacts with that particular jurisdiction.
  • Arbitration Clause
    • This is primarily used to discourage litigation by limiting the right to a trial through a traditional court system.
    • This can be more cost effective way to resolve disputes than going through a full blown litigation.  This is not always the case.
    • These can describe the specific process for proceeding through to arbitration which can be very different that a traditional court proceeding.
  • Jury Trial Waivers
    • A person needs to understand what exactly is being waived in by the clause.
    • A person needs to understand whether or not the clause will be enforceable in the state that the agreement is to be determined under.  Not all states would enforce this kind of a clause.
  • Severability Clauses
    • These usually say, generally, that if one clause or portion of an agreement isn’t enforceable then it is eliminated and all the rest of the contract is still in tact but some states won’t enforce it and therefore the entire clause could be void.
    • Sometimes these issues can be carved out specifically to protect the rest of the agreement.
  • Cooperation Clauses
    • These usually state that the parties are suppose to cooperate, etc. and it seems like it could be a good idea, however, one person’s cooperation might be another person’s demand for additional terms that aren’t in the agreement in the first place.
    • Sometimes these issues can be spelled out so that there isn’t unintentional consequences in the future.
  • Integration/Merger Clauses
    • Think about all of the prior communications and documents that are related to the agreement…is everything necessary and material in the actual agreement?
    • Have all representations that have been made the parties, agents of the parties, etc., all been incorporated?
  • Warranties
    • Is everything listed in the clause true?
    • Are you sure what the implied and express warranties are?
    • Do you need to limit any certain warranties?
    • How does the governing law handle warranties?
  • Damages Clause
    • Do you have a situation where you want to limit the damages?
    • Does the state law governing the agreement refuse to enforce the kind of limit you are trying to provide for in the contract?
      • Estimated damages or liquidation clauses need to be supported.
      • Penalty clauses that appear to be purely punitive (as punishment) are not likely to be enforced.
  • Indemnification Clauses
    • These are good for situations where some third-party might sue one of the parties of the agreement and the other party doesn’t want liability.
    • These are good to have so long as they are tailored to fit the governing law of the contract; are tailored to spell out who is indemnifying who for what; and outlines the process for getting notice of the indemnification, etc.
    • Certain claims cannot be covered by an indemnification clause.

If you are unclear as to whether or not the boilerplate language is appropriate for your situation, and you want to work through the issues, you are encouraged to speak with a Contract Attorney in your area who can assist you.  Beebe Law, PLLC is an Arizona based law firm representing clients in the state of Arizona.

 

Smart people will, by default, never be “yes” men…

I see it all the time; business owners who hire professionals that turn around and try to tell them how to do their job.  Some call it micromanaging.  Others call it “big boss syndrome.”  What I know is this concept just doesn’t make sense.  Why would you do that?  Assuming that the quote “It doesn’t make sense to hire smart people and then tell them what to do; we hire smart people so they can tell us what to do.” was actually said by Steve Jobs…I think he had it right.

Smart people, by their very design and nature, will not automatically be “yes” men.  They will question, analyze and reason with any requests that are made of them and, if they disagree with your position, they are going to tell you so and they will not do what you ask them to do if they know it is wrong or is going to bring harm to you in the long run. Professionals are not going to tell you what you WANT to hear…they are going to tell you what you NEED to hear.

A wise colleague of mine once said that the best you can do is advise your client on the best/right choice to make and let your client take it from there.  In the legal world this is true…after all, if the client goofs things up, and you have to fix it, you can look at it as job security.  Right?  I think, however, in a business setting, and you are an employee who has been hired to do an important job, this can be an even harder pill to swallow.  I suppose this is because if the boss screws things up, it could mean that you end up out of a job, or worse, which will make that employee fight harder against “bad” decisions.

Bottom line, if you want a “yes” man all of the time…don’t hire a smart person.  It just won’t work.