Reading around: Franchise Broker Blogs

Some reached this blog with a search about franchise broker blogs. That inspired this post. Since I had posted about franchise brokers (see Franchise brokers), I went to Google to see what "franchise broker blogs" turned up. Here are the results.


The Bristol Group has Brokers Blog. However, the latest post is Why Buy an Existing Business from March 23, 2007.

"With so many options - startups, franchises, home-based businesses, and multi level marketing - this is a question worth considering. There are several reasons why buying an existing business or franchise resale will increase your chances for success."

AllBusiness.com has The Rewards of Being a Franchise Consultant on its Franchise Blog.

As a "fee for service" franchise consultant, as opposed to a franchise broker who sells franchises, I am equally rewarded by assisting business owners seeking to franchise a business and providing franchise due diligence services for those seriously considering the purchase of a franchise.

Franchise Blog has a post about a franchise broker becoming a franchisee in New Franchise Opportunity in Phoenix Market Promises Great Profits and a Whole Lot of Fun:

"In his business as a franchise broker for the FranNet of Phoenix, Franchise Resource Company, Kent Craven helps people find and invest in franchise businesses that fit their lifestyle."

The person writing MyBizBroker Blog is a business broker. Franchising brokering might not be a main topic here but I still suggest bookmarking or adding the RSS feed to your collection. The blog has some very good information on start ups and business in general. (So it is off the topic of the subject line, so it goes with me.) Also, it is updated fairly regularly. Tools is a good example:

Business Owner’s Toolkit TM is a comprehensive guide for small business owners to help them start, run and grow their new ventures. This guide provides 5,000 pages of detailed information about all aspects of running a business. It provides guidance for creating a business plan; obtaining financing; hiring and managing employees; product marketing; and numerous other essential topics critical to the success of a small business owner.

Another blog trending away from the subject of the title is Franchise Pundit. I do not see posts like Tools directly above, but I see a lot of relevant news and trenchant commentary (no long posts like here).

Privacy and Security Blog

A ratehr interesting blog from a big West Coast law firm. While not areas that I particularly practice in, these areas of law do have importance for all of us. I do suggest taking a look.

Can your spouse get you sued over business information?

I debated this post about a Fox News article Insider Trading: Pillow Talk Reveals Couples’ Dirty Little Secrets.After all, what readers I have do not come here for SEC matters. This paragraph changed my mind:

The second theory, “misappropriation,” applies to someone who is not a corporate insider, but rather someone who owes a fiduciary duty to the source of the material non-public information for some reason. Misappropriating confidential information for securities trading purposes, in breach of a duty owed to the source of that information, gives rise to a duty to either disclose or abstain. In plain English, the outsider (aka the misappropriator) who has no ties to the corporation can be liable for insider trading if they fail to abstain from using the information or disclose the secret to the public. It’s under this theory that courts construe a duty of trust and confidence when the communicator of the information was a spouse, sibling, parent or child of the recipient, unless the recipient can show there was no reasonable expectation of confidentiality. So, you can be on the hook and have no direct connection to the corporation.

Fiduciary duty applies to more than securities fraud. The duty applies to the personal administrators of estates, trustees of all sorts, members of a limited liability company, and directors/officers of a corporation. I have not seen an Indiana case applying a duty on a spouse, but it may be possible.

Credit repair scam article

Yesterday's Indianapolis Star republished Know signs of a credit repair scam. Please remember this:

"While you can dispute information you believe to be false, no credit repair company has the right to remove accurate, current information from a credit report. If it is correct, only the passage of time can reduce the impact of a negative report. But don't despair. The impact of that information on your credit scores is less as the years go by."

If you are in Indiana and have questions about credit repair, give me a call.

The National Federation of Independent Business

A friend who has a business in Anderson talks often about the NFIB. What is it? Here is the description from their webpage, but the particular point here is that this is an organization of and for small businesses:

"The National Federation of Independent Business is the nation's leading small-business advocacy association, with offices in Washington, D.C., and all 50 state capitals. NFIB's powerful network of grassroots activists send their views directly to state and federal lawmakers through our unique member-only ballot, thus playing a critical role in supporting America's free enterprise system."

Check out the NFIB.com Home Page.

What happens to an Indiana business in a divorce?

Keep in mind that a business is property. Indiana divorce law presumes a 50-50 split of the property.

Here is a current statement of the law from Frederick v. Frederick (NFP opinion 10-24-2007, PDF format):

C

oncerning personal goodwill and enterprise goodwill, our supreme court has held:

[B]efore including the goodwill of a self-employed business or professional practice in a marital estate, a court must determine that the goodwill is attributable to the business as opposed to the owner as an individual. If attributable to the individual, it is not a divisible asset and is properly considered only as future earning capacity that may affect the relative property division. . . . [T]o the extent a business or profession has goodwill (or has a value in excess of its net assets) it is a factual issue to what extent, if any, that goodwill is personal to the owner or employee and to what extent it is enterprise goodwill and therefore divisible property.

Yoon v. Yoon, 711 N.E.2d 1265, 1269-70 (Ind. 1999). “If a party wishes to exclude personal goodwill from a business’s valuation in a dissolution proceeding, they must submit evidence of its existence and value to the trial court by ensuring that their chosen expert provides proof of such existence and value.” Balicki, 837 N.E.2d at 538.

Which means that the court gets to decide how to divide the property unless there is a prenuptial agreement.

If want to read more about prenuptial agreements, this link will take you to all the articles I have posted on prenuptial agreements at my Indiana Divorce and Family Law Blog.

Please give me a call if you live in Indiana and are thinking about a prenuptial agreement.

For Indiana Lawyers:Local Rules Federal Rules About E-Discovery Issues

From the Electronic Discovery Law Blog, Updated List: Local Rules of United States District Courts Addressing E-Discovery Issues : Electronic Discovery Law here is the selection for Indiana:

Northern District of Indiana
Report of Parties' Planning Meeting

Southern District of Indiana
Uniform Case Management Plan (see Part III(K))
Rule 16.1 Pretrial Procedures (requiring use of Uniform Case Management Plan)

Age Discrimination

I assume anyone with fifteen or more employees knows of the federal Age Discrimination in Employment Act. If you do not, then read this article AGE DISCRIMINATION IN EMPLOYMENT ACT. Mr. Spero does a very good job of explaining the federal ADEA.

Those Indiana employers with fewer than fifteen employers may not be aware that Indiana has its own age discrimination law and protects employees between the age of forty (40) years and under the age of seventy (70) years.

If you do not know about this law, then you are probably in the mainstream. I think the Indiana law pretty toothless for employees but possessing some pitfalls for employers. Knowing just how effective this law is hard to gauge - its enforcement is hidden from the public.

IC 22-9-2-9
Hearing; publicity
Sec. 9. No publicity shall be given to any proceeding before the commissioner of labor, either by the commissioner of labor or any employee thereof, provided that the commissioner may publish the facts in the case of any complaint upon which a determination has been made.
(Formerly: Acts 1965, c.368, s.9.)

I do not think I am any different than any other lawyer in this respect: not knowing how a law is interpreted by a court or an administrative agency drives me nuts. How else do we know how to advise our clients? (As an aside, how do citizens know that the law is being enforced.)

My thinking on this statute is that it poses a problem by its very obscurity. Employers could easily comply with the law but those who do not are probably saved by their employee's ignorance of the law.

As for employees, those people most likely to be plaintiffs, the law does not provide for attorney fees. I can see the policy reasons for this omission but this statute offers little solace for employees.

Researching businesses

Need information on a company? Here are some a resource that might help, links to the Secretaries of State for all the States: Corporation and Business Entity Search Page.

Thanks to The Virtual Chase for the information.

Whistleblower Law Blog and Medicare Fraud

Many years ago I was approached about a Medicare fraud case. The client did not wish to pursue the matter but I acquired an interest in this area of law. I suggest Whistleblower Law Blog for anyone interested in the subject.

Miami Jury Convicts Medical Company Owner of Medicare Fraud

"The Medicare Strike force has helped complete another successful qui tam case for Medicare fraud. According to Assistant Attorney General Alice S. Fisher of the Criminal Division and U.S. Attorney R. Alexander Acosta of the Southern District of Florida, Rodolfo Aenlle, owner of Direct Nursing Assistance Inc. was recently convicted by a federal jury in Miami for Medicare fraud."

The blog maintains a page just of whistleblower/qui tam news: Qui tam Legal News.

If you think you might have a government fraud case in Indiana, please contact me.

Standing Up To Takedown Notices - washingtonpost.com

Having written about the Minnesota downloading case (Another view on Minnesota downloading case and Why juries make lawyers nervous), I thought the following Washington Post article an interesting view of this kind of case. Standing Up To Takedown Notices gives us a view of what happens before the lawsuit starts:

"On a chilly February day, Stephanie Lenz decided to show her family and friends what her bouncing baby boy could do. She plopped 13-month-old Holden, then learning to walk, on the floor, cranked up Prince's song 'Let's Go Crazy' and whipped out the digital camera.

In the 29-second YouTube video that resulted, Holden smiles and bobs up and down to the music. According to Universal Music Publishing Group, he also helps his mom commit a federal crime: copyright infringement."

In June, Universal, which owns the rights to Prince's song, sent a notice to YouTube requesting the video be taken down but did not take action against Lenz. On the contrary, Lenz sued Universal for abusing copyright law.
***

YouTube isn't the only hosting site on which copyright law is sometimes allegedly abused. EBay has been the setting of many of these infringement claims, too, but generally over the "first sale doctrine" -- a portion of copyright law regarding legal resale of licensed goods -- rather than fair use.

Take, for example, Karen Dudnikov and Michael Meadors. They run a mom-and-pop eBay store out of rural Colorado, 10 miles from the nearest power line. When they opened, Dudnikov began sewing pillows, potholders and other items out of fabric with licensed images of cartoon characters and other trademarked or copyrighted images. Soon they found their auctions were being taken down because of infringement allegations.

To date they've taken 15 corporate heavyweights to court -- including Disney Enterprises, Major League Baseball and M&M/Mars -- and gotten them all to back down. Facing off against these legal powerhouses, they represented themselves.

"They think we are just some country bumpkins they can push around," Meadors said. "This is our livelihood, and we stick up for ourselves."

Embroiled in their 16th lawsuit over a Betty Boop fabric, the couple has accepted outside legal help for the first time, from Public Citizen. On the fabric, the cartoon character is wearing a dress that closely resembles a design by artist and fashion designer Ert¿. SevenArts, the British company that owns the rights to Ert¿'s designs, told eBay through a U.S. associate to remove the auction for copyright violation.

Bales on Employment at Will

Indiana employment law has no more firmly entrenched doctrine than employment-at-will. The ContractsProf Blog writes about a new paper on the subject. For those wanting an idea about why employment-at-will caught on, you ought to read Bales on Employment at Will.

Does the franchise system market for customers?

Reading Achieve maximum market optimization with minimal “cannibalization” of customers through customer analytics. from the International Franchise Association raised some interesting questions. Noe of which I have any concretes for and which is why I am tossing them out here. This paragraph describes the subject of the article pretty well:

"If optimizing retail markets is so essential, one would guess that retail franchises have developed incredibly effective methods to measure the affect of one store on another when selecting retail sites. Believe it or not, this all-important issue is often left to guesswork."

The article then goes into detail about using customer analytics for determining the best site for a franchisee's operation and the details are worth reading.

My questions:

1. With customer analytics being available, should not the franchisor use this method for selecting sites?
2. Should the franchise disclosure state whether or not customer analytics were used in determining franchisee sites?
3. The article premises franchise failure on failing to market to the customer, how accurate is this premise? Does this explain the failure of otherwise good franchise systems?
4. Ought potential franchisees question more than the usual franchise system but also the systems' demographic and other marketing assumptions?
   

Licensing or Franchising?

For those thinking of franchising or licensing, Is Licensing a Viable Option Rather Than Franchising? from Rush on Business needs read.

The article discusses how Dawn and Kristen were presented an opportunity to offer a license of their recipes, Web site and logo. In these particular circumstances we were able to craft an agreement which provided them the opportunity to expand their reach beyond the single location but without all the hassles and expense of a franchise.

"So is licensing a viable option for businesses looking to expand rather than franchising in all circumstances? Absolutely not. Whether or not licensing is right for you is completely dependent upon the facts and circumstances of your own individual situation. (See Don't Let Your Distribution or Licensing Agreement Become an Inadvertent Franchise)."

If you are in Indiana, have similar ideas and need legal counsel, please give me a call.

Another view on Minnesota downloading case

I mentioned this case in Why juries make lawyers nervous.

The IP ADR Blog also wrote on this case under "B" is for Bully: Jean Valjean at the Music Store. In my earlier post, I used the case to show some of the vagaries of juries.

"A woman facing a $222,000 music-sharing verdict asked a judge Monday to overturn it.

Jurors in a case that six record companies brought against Jammie Thomas found that she violated the companies' copyrights by offering 24 songs over the Kazaa file-sharing network. They ordered Thomas, a mother of two who makes $36,000 a year, to pay the companies $222,000.

In a motion filed Monday, Thomas' attorney, Brian Toder, did not argue that she hadn't violated the copyrights. Instead, he said that because the songs could have been purchased online for about $24, the $222,000 verdict was disproportionate and amounted to punitive damages.

IPR ADR Blog summarizes some facts which some interest besides and beyond the point I made earlier. However, this post does make the point made in my earlier post:

Why the Jury Likely Made the Thomas Award So High

If you've been following this story, you don't have to do much guess work to believe the jury was likely punishing the defendant for lying to them on the witness stand. Although the defendant denied file-sharing on direct examination, documents produced at trial pretty well demonstrated that she was not telling the truth.

Small Business Trends

I found this one through The Blawg Review. I think the name says it all. If you have a small business, then check it out here: http://www.smallbiztrends.com/

Reading about mediation and ADR

Serendipity strikes. Following my post Surprised by mediation statistics, articles on mediation and ADR seem to be popping up. My original find still has me thinking about the benefits of mediation and other forms of ADR. I pass along these other finds for the reader who might be having some of the same thoughts or curiousity as I am (and these are in no particular order other than discovery):

1. Blawg Review #130
2. Blawg Review # 130 (And, no, that is not a typo or a duplication but a joint review of law blogs).
3. I Want to Settle an IP Action; What Do I Do If . . .

Employment law: Background Checks

From George’s Employment Blawg, Background Checks and the Job Search , some good advice:

Be honest, knowing that the truth is likely to come out. Many facts you would prefer a potential employer not know may not preclude your employment if properly and honestly presented. But if the same facts are discovered by the background investigator, and expose lies on your application and/or resume, you will be viewed as a liar, which is much more likely to preclude hiring.

So, one background-checking expert advises, “The absolute best thing you can do . . . is come clean in the interview process.”

As to the Internet “digital dirt,” take a good hard look at your online presence and clean up your act, if necessary. Better yet, don’t post anything anywhere online that makes you seem unprofessional or otherwise raises red flags to a reasonable employer."

The Care and Feeding of Lawyers

I wrote two posts on hiring lawyers on my Indiana Divorce and Family Law Blog, Following up on How to Hire the Right Divorce Attorney and How to Hire the Right Divorce Attorney. I think if you ignore the titles given the posts, anyone looking to hire an attorney can find some wisdom in the posts (truth-in-advertising point: the wisdom will more likely to be found in the original posts that I linked to).

A bit of a follow up, this is from For more advice on finding the Best Lawyer in the World, check out my earlier posts on the subject here and here. on the Darroll article I refer to in my "Following up on" post. This is about the best patent attorney:

For more advice on finding the Best Lawyer in the World, check out my earlier posts on the subject here and here.

Some news about ENDA

I have not written much about ENDA but here is soem news from last month Hill Panel Examines Employment Non-Discrimination Act.

Speaking of arbitration

From ContractsProf Blog: There Ought To Be a Law...:

"Arbitration is a creature of contract, and the Contracts course necessarily includes at least a few cases involving arbitration terms. But, pre-dispute arbitration could face its demise in many contexts. Senator Russ Feingold has proposed a bill called the Arbitration Fairness Act, which would invalidate pre-dispute arbitration agreements in employment, consumer and franchise contracts and 'dispute[s] arising under any statute intended to protect civil rights or to regulate contracts or transactions between parties of unequal bargaining power.

The post details the findings of the proposed legislation. This post ends with these two paragraphs:

And, on the heals of this proposal, comes a 74-page report, titled "The Arbitration Trap," by a group called Public Citizen. The report exposes the troubling relationship between certain arbitration providers and the credit card industry, and concludes that pre-dispute arbitration is "a rigged game in which justice is dealt from a deck stacked against consumers."

Nevertheless, the near consensus of predictors is that the bill has no chance of passing (or even getting to the floors of the House or Senate). And, despite numerous academic writings that support these findings and the elimination of pre-dispute arbitration agreements in these contexts, there has been very little popular press coverage of the subject. The most mainstream press I have seen yet is this op-ed piece from Forbes, which, in light of credit card industry practices, encourages the passage of the Arbitration Fairness Act.

Compare this with the earlier post on arbitration, Surprised by mediation statistics.

Employee handbooks - a good overview

From the Matthies Law P.C. website Some good reasons why your Company should create its own Employee Handbook.

Employment discrimination - good article

The McDonnell-Douglas case has great importance in federal anti-discrimination law. For those employing fourteen or more employees or working for an employer with more than fourteen employees, you need to know about this case.

Kennedy Information Recruiting Trends published George Lenard's What Does Climbing the St. Louis Arch have to do with Proving Discrimination? The article lays out the case's importance here:

Eight long years passed. Finally, in 1973, the Supreme Court decided Green’s case. The decision, McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), became such a judicial landmark that even today courts cite it hundreds of times a year for its announcement of the following three-step analysis: 1. The court first looks at whether the person claiming discrimination has made a prima facie case. If not, the case is subject to dismissal without the employer presenting any evidence of its own. According to the McDonnell Douglas decision, a prima facie case of racial discrimination in hiring requires proof that the person:

1. The court first looks at whether the person claiming discrimination has made a prima facie case. If not, the case is subject to dismissal without the employer presenting any evidence of its own. According to the McDonnell Douglas decision, a prima facie case of racial discrimination in hiring requires proof that the person:
   1. belongs to a racial minority;
   2. applied and was qualified for an open position, and was rejected.
2. If it finds a prima facie case, the court then proceeds to the second part of the analysis, in which it looks at whether the employer stated a legitimate, nondiscriminatory reason for the rejection.
3. Finally, if the employer stated such a reason, the court determines whether there is evidence it was not the true reason, but instead was a pretext to cover up discrimination.

I suggest reading the full article. It does a great job of explaining the case and how it applies to employment law.

Also, George Lenard has for many year published George's Employment Law Blog. I consider it a very good blog for employment law issues and news.

Seminar on Indiana's Open Door Law

Indiana Coalition for Open Government

"Set aside November 8 for a very special day of training for journalists and citizens on access issues, hosted jointly by ICOG, the Indiana State Bar Association, and the Hoosier State Press Association. USA TODAY Editor Ken Paulson is the keynote speaker. Check out our other speakers and plan to join us in downtown Indianapolis for another great training event."

For more information: Access Boot Camp – Register Now!

Surprised by mediation statistics

I was surprised by the post More Statistics on the Differences between Arbitration and Litigation Procedures, Cost, Duration and Outcome on the Southern California Arbitration Mediation and Conflict Resolution Blog. For example:

Time and Cost Differences Between Arbitration and Litigation *

Employment claims take 650 to 720 days to be resolved in court, according to the National Center for State Courts. * The median time to resolve an employee dispute by arbitration is 104 days * the median cost of resolving employment disputes by arbitration is $870.

Sources: Consumer and Employment Arbitration in California: A Review of Website Data Posted Pursuant to Section 1281.96 of the Code of Civil Procedure California Dispute Resolution Institute, August 2004 http://www.mediate.com/cdri/cdri_print_Aug_6.pdf and Examining the Work of State Courts, (1999-2000) National Center for State Courts http://www.ncsconline.org/D_Research/csp/1999-2000_Files/1999-2000_Tort-Contract_Section.pdf

Outcome Differences Between Arbitration and Litigation: Arbitration & litigation final awards are essentially the same as court judgments * median monetary awards for successful claimants are greater in arbitration than in court—$100,000 in arbitration compared with $95,554 in court."

I suggest reading the full article. I have my doubts about arbitration but that doubt comes mostly from choice of law provisions where arbitration is to take place in a state far from Indiana. I am certain that works to the advantage of one of the parties -usually the one that is without the means to travel to the other state or hire out-of-state lawyers.

A few points that seem to escape the polling and studies, ADR does permit privacy to the parties denied by filing a lawsuit. I count that as an advantage for the business client.

From my experience in Indiana, there are two sources for delay:

• First, most Indiana courts have criminal jurisdiction. Criminal cases take priority over any civil case (there is the constitutional right to a speedy trial). Civil trials get bumped from the court's calendar to make way for a criminal trial.
• Second, there is the discovery phase of trial. I am sure discovery increases the cost of civil litigation. We lawyers like knowing everything we can about the opposition before trial begins - so we get documents, we do depositions, and we read and review all the information. Sometimes this phase becomes a sword rather than a shield as parties push depositions (which cost money due to paying court reporters) and dump documents in massive quantities. The movies A Civil Action and Class Action do a good job of showing this aspect of lawyering.

I admit that I am inclined to distrust perfect answers. I continue to see ADR as a tool for my clients but I will have doubts that it will solve all their problems.

Why people need powers of attorney

Wills, Trusts & Estates Law Prof has a post about a subject I have been kicking up for several years now. Read these facts from Temporary Guardianship Awarded to an Injured Marine’s Mother:

John’s father, and Debra Graziano’s estranged husband, Edward Graziano, unsuccessfully tried to appoint an independent guardian for his son. Edward Graziano’s recently retained attorney, Steven Hearn, was granted a continuance to have more time to prepare his case. During that time Hearn plans to investigate Edward Graziano’s concerns that his estranged wife is receiving financial support from the Bollea family. It is not clear whether John Graziano has a will and power of attorney, as is typical for the service members who are deployed overseas.

I had something like happen a few years ago. No power of attorney for an incapacitated spouse, so we filed for guardianship. The client paid about six times what would have been the cost for a power of attorney. The cost might have gone higher as the children from a prior marriage wanted to fight the guardianship but the spouse died.

Who might not wind up in the hospital and unable to take care of their business? Anyone and everyone is the answer. A power of attorney kicks in when you cannot take care of your business and lets another person take care of your business so long as you are incapacitated.

A health care power attorney operates the same way but is limited to medical decisions and care.

I now recommend that anyone making a Will also have a power of attorney, a health care of power of attorney, and a Living Will. I can put together a package of these documents for far, far less than the cost of a guardianship for anyone living in Indiana.

Making a Will is not required but I also do a package of power of attorney, a health care of power of attorney, and a Living Will.

Another Copyright Blog

I came across Pierce Law IP News Blog today. The blog describes itself as "A blog devoted to news on IP, Commerce and Technology." Most of the posts I have seen concentrate on copyright rather than trademark or patents. While not updated very frequently, I have got to say the writer does a great job getting across how copyright applies to businesses (mostly music or film).

Franchise brokers

I have no experience with franchise brokers. As Should You Use Franchise Brokers? from Entrepreneur.com - MSNBC.com points out, these are a fairly recent development. The following is a good summary of the pitfalls but I suggest franchisors and franchisees read the full article.

While the idea of finding an 'ideal match' for prospective buyers again sounds good in principle, individual brokers are often motivated by factors outside the buyer's best interests. Franchisors may pay different levels of fees, providing one clear-cut motivation. Some franchisors offer broker spiffs--ranging from bonuses to free trips to Hawaii. And of course, the broker doesn't get paid unless the franchisor closes the deal, so proven closers always rank high on the broker's short list when it comes time to make recommendations. Again, it's important to emphasize that many brokers do have a genuine concern for their franchise buyer 'clients.' But even the most altruistic broker will, at a minimum, be subjected to the kinds of outside factors discussed above.

If you are dealing with a franchise broker, I suggest reading this article and consulting a lawyer.

Copyrights e-mail updates

I had had thoughts twenty years ago of doing copyright work. Not got a bit of work in all the years of practicing but I still try to maintain some connection to this kind of work.

Now the Copyright Office provides an e-mail update for information on developments in the area. You can subscribe here, if you have an interest.

If you do not want periodic updates, here is the site for the Copyright Office.

Employee blogging - problems

Terrible title for this post but bear with me.

I am reading Kevin O'Keefe's Real Lawyers Have Blogs when I reach the post How to stop a disgruntled ex-employee blogger. Kevin O'Keefe comments on a post, How do you stop a disgruntled employee blogger?, from Itbusiness.ca. Frankly, I found Kevin's comment a bit more important than the points of the earlier article.

One thing Vawn doesn't mention is the necessity of an effective Internet presence. An effective corporate Internet presence is not a Web site or press releases issued across the net. It means having a trusted and reliable voice or, better yet, multiple voices on the blogosphere. An effective Internet presence requires corporate employees to be blogging.

Without an Internet presence, I am not sure that a disgruntled employee's badmouthing of the company will mean much. I may be a bit more sensitive about this as I continue to blog about legal issues. I will admit that my marketing of this blog is probably cack-handed at best but I draw very little attention from my local area or even Indiana. Yet, I am online and I do keep an eye out on what, if anything, is said about me out here on the Net. I still skeptical how much the Internet has penetrated some parts of this country (like, say, Indiana).

I am also interested because I see the possibility of problems that fall under the more standard headings of trade secrets and non-disclosure. Without proper preventive measures in place, the business may face more than mere bad publicity. One may be looking at losing one's business.

I think tow types of businesses need to read these posts:

1. Those without an Internet presence; and
2. Those with an Internet presence.
   

The first group needs to decide on an employee policy which takes into account the Internet. Yes, talk to your lawyer about this. The second group needs to consider whether their current policy is sufficient.

Again, from Kevin O'Keefe:

A blog, as a means of handling disgruntled employees on the net, may be a bit frightening for corporate heads and PR/communications professionals. But times are changing. Practicality requires doing things differently than they've been done in the past.

Employment law - online resources

Hieros Gamos provides a page on Employment Law here. Think of it as a portal - a collection of links -rather a source of actual answers.

Blog News

I discovered today that the e-mail subscription service is not working. I have decided to switch over to FeedBlitz. I am sorry that I do not know what this will do my current subscribers on the old system. If you stop getting your e-mail updates, I suggest that you go to the blog and subscribe under the under system.

What is in a name? A lawsuit!

Yes, names make a difference. So learned a Muncie business. Muncie pub gets threat of legal action from steakhouse chain.

A new downtown Muncie eatery has been threatened with legal action by a well-known restaurant chain with a similar name. Attorneys for the Morton's of Chicago steakhouse chain this week sent a letter to Ty Morton, the owner of Morton's Pub and Grub, demanding he change the name of his restaurant, which opened Tuesday.

This is trademark law, pure and simple. Big companies keep an eye out for those businesses with similar names. Generally speaking, the law asks if there is a likelihood of confusion to the public created by the different businesses. One case coming to mind right now is the one between Lexus (yeas, the car) and Lexis (a publisher). No likelihood of confusion there.

Businesses must do this or lose the value of the trademark.

All that said, two things surprise me in this article. First, why did the business owner not consult an attorney before opening the business. One does not need a patent attorney to know something about trademarks. I think I would have advised him that this kind of action was possible even though I think the likelihood of confusion is small.

Second, why did go all the way to Texas for a patent attorney when there is one in Anderson and one in Muncie (or used to be)? I am trying to expand my trademark practice and I am sure there are others locally or within Indiana who are knowledgeable about trademarks.

Update 7/3/08. Morton's Pub & Grub to close:

MUNCIE — Another downtown eatery that went public with its struggles to find and keep customers has closed.

Morton’s Pub & Grub will close after July 19, owners Ty and Stacy Morton announced today.

Ty Morton had told The Star Press a few weeks ago that the restaurant, located in a building at High and Main streets that has been the scene of many failed restaurants, was struggling.

What makes a successful franchise owner

MarketWatch published Five keys to becoming a successful franchise owner and I would say it is worth reading in full. I admit the following has the best points:

Performance under stress, willingness to lead at first by following -- these are some of the best indicators of future success. Some of the other 'biggies' in franchising, and elsewhere for that matter, according to Thompson:

1. Commitment. You have to make the time to invest, learn and apply the system and how to interface with customers. Don't just learn what works, learn what works best.
2. Learning attitude. Franchisees -- and ultimately, leaders -- must be willing to "go back to school." They should be willing to solicit advice, not just take it.
3. Willingness to work with others. Many franchisees -- and frustrated leaders -- can't or don't want to work with others. Success means working with the franchisor, other franchisees and even key customers as a team.
4. Patience and perseverance. Sounds elementary, but many new franchisees look for quick success. But national research conducted for my book, "The Millionaire Zone," found that, according to millionaires, "perseverance" was the No. 1 key to success. In fact, it ranked far above education. The fact is you need perseverance to overcome the many challenges that will surely arise as you grow your business.
5. Willingness to assume responsibility. This might be the hardest. In franchising, and many other areas of business, there's a tendency to blame others for failure. Be honest and, above all, be honest with yourself.

"If you don't have these qualities, we'll find out in six to nine months after you start your franchise," predicts Thompson. The good news: 70% to 80% of his trainees turn out to have most of these qualities.

I agree with the preceding paragraphs even though my experience has been with on the franchisor side of things. Franchisors need to be as cautious about their franchisees as franchisees need to be about their franchisors. Franchise systems can fail due to weak franchisees. Franchisees lose money from choosing the wrong path. Franchisees who fail lead to litigation by one or both parties to the relationship. While I like to litigate these kind of cases, I do not think that either party is as well served by litigation as they would have been served by exerting a minimum of caution and precaution.

Open Door Law and 911 Calls

Some news about the Open Door Law from the Palladium-Item : Counselor rules in prosecutor's favor

In an advisory opinion issued Friday, the Indiana Public Access Counselor said the Wayne County prosecutor was within his rights in withholding public records involving the deaths of two Centerville girls in September.

Access counselor Heather Willis Neal said that Mike Shipman did not violate the Indiana Access to Public Records Act when he withheld the 911 tape of the call made Sept. 1 from the home of Dale and Lonny Stanley. Lonny Stanley phoned 911 after she found her daughter, Erin Stanley, not breathing in her bedroom.

Palladium-Item reporters had requested the tape as a public document from the county's 911 Dispatch Center. At the time, Shipman said the tape was part of the Centerville Police Department's investigation into the deaths of Erin and Kelly Stanley.

Investigatory records are exempt from public inspection and copying by Indiana law.

The Palladium-Item also requested the 911 tape of the Sept. 7 call to the dispatch center when Kelly Stanley was found dead in her home, but later was told that that taped recording did not exist because of a mechanical failure in the dispatch center.

Shipman said he was pleased with the access counselor's opinion.

"Her opinion supported my decision to delay releasing the 911 recording," he said. "I thought it was important to give law enforcement time to interview Mrs. (Lonny) Stanley about it before it was given to the public."

But Hoosier State Press Association attorney Steven Key disagreed with the opinion.

"As they were created, I do not believe the 911 tapes were investigatory records and just by their going from one agency to another does not change their status," Key said. "I still believe this record should be open for inspection and copying."

Neal's opinion also differs from one by her predecessor, Karen Davis, issued in 2006.

I doubt that court will be the next step but oen can hope for more than an advisory opinion. Why? Being adviory means that the iopnion binds no one. What would be a binding interpretation? One from the Indiana Supreme Court would be best.

Friday humor: business branding

From Name Wire: The Product Naming Blog comes Company Naming That Is As Funny as It Wants to Be:

There are many company names that are funny without really meaning to be, for example STD Contractors, the WTF Group, or Phag.

Some restaurants also just seem to create unintentionally memorable names, such as the House of Hung or Yuki Sushi. Boring Business Systems is another name that is kind of, you know, boring.

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On the other hand, Raymond Lawrence has an excellent post up about funny business names that work. Nerds ToGo, Pet Butler, Boneheads and College Hunks Hauling Junk are all on the crazy side but they get the service message across. Brick Kicker gives pizzazz to a home inspection business, and FunBus is a better service offering than "livery service."

I will suggest that some of the poorer business brands may be due to an interaction between the trademark office and the imagination of the business owners.

A post I wish I had written

Probably more than a few attorney have thought the same way - just change "estate planning" to whatever.

If you are thinking about doing your own estate planning documents -- think about this, are you already an expert in a certain area that you would be aghast if someone were to take on your skill themselves?

Say, are you a professional hair colorist? A skilled musical instrument repair person? A certified public accountant? The hair colorist, instrument repair person and CPA would all say you would be crazy to do your own hair color, fix your horn and file an estate tax return.

As an estate planning attorney, I say that it would not be wise for you to do your own estate planning.

I do suggest reading the rest of What Lawyers Offer - Education, Experience and Knowledge. It makes excellent points specifically about estate planning but more generally about what you get from a lawyer.

I like Kitchen Nightmares

Kitchen Nightmares - two words I did not expect to write here. Any more than I expected to write Gordon Ramsay. Bear with me, I think the show has something to teach any business owner.

See, the wife got us digital cable for our anniversary and that package included BBC America. BBC America carries Ramsay's Kitchen Nightmares which I found by accident. The bleeping caught my attention. I am anything but a fan of reality shows but this show is truly a reality show. It is not about cooking but about the business of running restaurant. As I watched it, I realized that there was some pretty sound advice being given here.

I can help businesses with the legal side of things - forming the business as a corporation or limited liability company, dealing with contracts, collection, and so on - but I cannot keep the business running on its own. I see many potential business owners come through my office with romantic dreams of self-employment. Many possess good ideas and some even great ideas. Not all can get the business off the ground and of those who get the business started cannot keep it running. I suggest anyone wanting to open a business to watch this show. See how much work it takes to make a business flourish.

I guess there may be an American version of the show, too. The Boston Globe reviewed what sounds like a similar but different show. The BBC show has the bleeping but a follow up is included at the end of each show. Not every restaurant survives even after a visit from Ramsay. I say that truly is reality.

ERISA

ERISA cases are one thing I do not take. If you have a case in Indiana, I suggest searching Google for a lawyer. The only attorney I knew doing this work in my vicinity was Lynne Lawyer. You might give her a call.

On the other hand, if you are an employer then the federal Depeartment of Labor may have something to help you.

The U.S. Department of Labor’s Employee Benefits Security Administration (EBSA) has released a new interactive Web tool to serve as a resource for employers in complying with federal employee benefit laws. The elaws ERISA Fiduciary Advisor, available at www.dol.gov/elaws/ERISAFiduciary.htm, is designed to help employers and others who provide services to private sector retirement plans understand their responsibilities.

Do you check references? Read this post

Actually, do not read this post but read Know who you really are interviewing. Really good advice on interviewing and hiring new employees.

Something different - commercial loans, defeasance

I get a variety of e-mails. Some are outright spam and some come close. I almost put an e-mail from DefeasanceNews.com.

My practice does not specifically include commercial real estate. Which may be why I found the site so interesting - the strangeness of it all.

I also liked how the site provides a definition of defeasance and an overview of the process. Okay, the language could be a bit more simpler for those of us not so familiar with the process.

If a business has secured commercial debt (like a mortgage) and is looking to prepay the debt, you need to be looking at this site.

Why juries make lawyers nervous

I am reading Good Morning Silicon Valley when I run across She should be glad there wasn’t an option for “truly, utterly, incredibly liable”. I missed the news about a music downloading trial in Duluth which this post covered.

According to Hegg (who, by the way, says he has never been on the Internet), at least two of the jurors wanted to award the maximum damages of $150,000 for each of the 24 songs at issue, while one adamantly held out for the minimum, $750 per. In the end, they settled (though Hegg didn’t explain exactly how) on damages of $9,250 per song, a total of $222,000. “That is a compromise, yes,” said Hegg. “We wanted to send a message that you don’t do this, that you have been warned.” The warning might not have been so stern if the jurors hadn’t felt so insulted. “She should have settled out of court for a few thousand dollars,” Hegg said. “She lied. There was no defense. Her defense sucked. … I think she thought a jury from Duluth would be naïve. We’re not that stupid up here. I don’t know what the (dickens) she was thinking, to tell you the truth."

I emphasized the second sentence above because right there is the thing that makes lawyers squirm with a jury trial. Lawyers prepare jury instructions (so do the judges), lawyers will even argue over jury instructions, and all for the purpose of giving jury's a framework to work within. In the end, juries can do a lot.

Fun stuff: Hollywood and lawyers

I was off most of last week due to illness and tried catching up some over the weekend. With that apology I hope to explain why something lighter and of more humor caught my eye this morning. Order in the court! reviews lawyers and the movies. Some good sense in there and a whole lot of amusement. Now, back to trying to attacking the papers piled up on the desk.

Libel in the Internet Age

Thinking of writing a book on a controversial subject? I bet you had not thought that you might wind up being sued in England for libel. Consider this paragraph from Libel Without Borders which appeared in the New York Times:

The case is fanning widespread concern that English libel law is stifling writers far beyond the borders of the United Kingdom. Today, any book bought online in England, even one published exclusively in another country, can ostensibly be subject to English libel law. As a result, publishers and booksellers are increasingly concerned about “libel tourism”: foreigners suing other foreigners in England or elsewhere, and using those judgments to intimidate authors in other countries, including the United States. Last year, the Association of American Publishers, Amazon.com, the American Society of Newspaper Editors and others filed an amicus brief in New York, arguing that such litigation “constitutes a clear threat to the ability of the U.S. press to vigorously investigate and publish news and information about the most crucial issues before the U.S. public.” ....

Then take a look at the rest of the essay.

The National Workrights Institute

Here is a an online resource for employment law. As it describes itself:

The National Workrights Institute is a non-profit organization based in Princeton, NJ. We believe that all workers are entitled to their rights in the workplace. NWI is a member-supported organization

http://www.workrights.org/

Choosing a business structure

Business Week published a fairly straightforward article on the different types of business structures for a startups: Room To Grow. The article gives the basic information on partnerships, corporations, and limited liability companies.

Contact me if you are looking to start a business in Indiana and need legal counsel.