Articles Posted in Business Law

Published on: | by

In recent years, social media has allowed users to instantly communicate with each other. Social media also provides a low cost and high-yield forum for communications. Because of these effects, social media is becoming the preferred way for advertisers to reach customers. A marketing campaign that includes social media can greatly enhance a company’s brand exposure.  However, there are several legal and regulatory issues that arise when using social media for advertising. When using social media tools like hashtags and facebook pages, advertisers should monitor their copyrights and trademarks and comply with state and federal regulations.  Is your company beginning a new social media advertising campaign? Are you trying to brand your company with hashtags and handles?  If so, then you should contact us to discuss the legal issues.

What is a Hashtag and How Is It Used in Advertising?

A hashtag is a form of metadata made up of a word or phrase that is prefixed with the symbol “#” used by a social media site to create a searchable keyword. Hashtags are commonly used to direct potential customers to others discussing the same hashtag. Any user could create a hashtag with your company’s name or one that infringes on your intellectual property. Most social networks have policies that prohibit trademark and copyright infringement. Be sure to check these policies and the procedures for reporting abuses. Yet, not every third-party use of a trademark is necessarily an infringement if done under the fair-use standard. If a third-party is using a hashtag or handle that refers to your trademark, it may not be an infringement if used only to join a conversation, and that user is not claiming to be the owner of the trademark. Further, you can actually trademark a hashtag with the United States Patent and Trademark Office for additional protection. A mark including the “#” symbol can be registered as a trademark if it functions as an identifier of a good or service.

Continue Reading ›

Published on: | by

In the past, to start a business you had to find a location, rent space, and open your doors to the public. Today, many entrepreneurs can do it all online by advertising, communicating with customers, and managing transactions using the web. Many entrepreneurs are interested in starting a new business with a strong online presence. There are several steps that one must take to start a business, plus additional considerations to comply with online business laws. Are you ready to create an online business? Are you unsure which laws you need to be aware of for your e-commerce website?  If so, then you need to know the process to start a business and the additional issues that apply to e-commerce.

How Do I Start An Online Business?

The Small Business Administration recommends a ten-step process to start a new business.  First, write a business plan.  This is your general outline as to the identity of your new company and the structure you are going to build to execute your plan.  Second, get the proper assistance and training. No one knows everything and connecting with mentors and experts can help you get off on the right foot.  Third, choose your location. If your company is 100% online, you still need to determine the types of customers you plan on attracting and to what areas you plan on making deliveries.  Fourth, finance your business. Whether you choose traditional financing from a commercial bank or more creative methods (e.g., crowdfunding), make sure to do your research and figure out what works for your company.  Fifth, determine the legal structure of your business. There are many types of entities you can create (e.g., LLC or Corporation). Each entity creates different levels of liability and tax obligations.  Sixth, register your business name with the proper state agency (e.g., Secretary of State).  Seventh, get a tax identification number (a/k/a EIN) by registering with the Internal Revenue Service.  Eighth, register with state and local tax agencies (e.g., Franchise Tax Board, a/k/a FTB). In general, each state has its own tax laws, so make sure you know the obligations within your state.  Ninth, obtain business licenses and permits.  You should keep in mind that state and federal agencies may require different licenses and permits. Finally, you may need to hire employees or independent contractors.

Continue Reading ›

Published on: | by

Companies, old and new, now have the opportunity to raise funds through a unique technique—crowdfunding. Although, this is a twist on the traditional investment model, crowdfunding allows companies and individuals to fund their new ideas and business ventures by seeking investments from the general public. This unconventional approach to the well-known investment structure allows new business to gain financial support. Do you have a new idea that you would like to fundraise? Are you a company that would like to launch a new product? Do you need financial support to help propel your latest venture? If so, then crowdfunding may help your entrepreneurial efforts.

What Is Crowdfunding?

Crowdfunding is the practice of fundraising a new company, idea, project, or venture through large numbers of people. These people typically donate small amounts that add up in the aggregate. Unlike the investment structure that appeals to traditional investors, the general public fundraises projects. Crowdfunding has begun to gain momentum and exposure after the passage of the Jumpstart Our Business Startups (“JOBS”) Act. This law was passed to help small businesses and entrepreneurs jumpstart their business. Both private and public companies may take advantage of this capital-raising model. Crowdfunding is unique because although it does allow for a company to use outside resources to fund a project, however, the company does not have to make an initial public offering, register as a public company, or meet the requirements of a traditional publicly-traded company. Also, unlike a public company, which receives outside investments on an on-going basis, crowdfunding efforts are limited in time. That is, they may not continue forever. An entity must raise its goal amount by a specified end date. Otherwise, the company must offer to return all investments made under that project.

Continue Reading ›

Published on: | by

A corporation’s trade secrets are its lifeblood. Indeed, it is through this information that a company generates a profit and maintains its reputation in the industry. A trade secret includes any unique information that carries value. There are both state and federal laws which pertain to trade secrets. Unfortunately, federal laws do not provide strong protections. This has weakened U.S. companies that have fallen victim to international trade secret misappropriation.  In response, since April 2014 the U.S. Senate has been considering the Defend Trade Secrets Act to provide stronger national protection for domestic corporations.  Nonetheless, companies can take steps to establish internal protections for their trade secrets.

A. Trade Secrets Status

A corporation cannot claim a trade secret if it is publicly known information. Most importantly, it must be information that is not available to competitors. For example, the recipe for Coca Cola is a trade secret. In fact, this recipe is arguably the most expensive trade secret in the world. Coca Cola could not claim its recipe as a trade secret if it was readily available to Pepsi.  Any information that a corporation freely provides to customers, trade associations, outside parties, or the general public cannot constitute a trade secret.

Continue Reading ›

Published on: | by

Employees, in the course of their employment, will often have broad access to company files.  If employees are terminated or seek other employment, such access can become problematic.  Indeed, companies store sensitive and commercially valuable information on their servers. Employee misuse of these files can substantially weaken a company’s economic viability and threaten its progress.  In a recent court decision, the United States District Court for the Northern District of California held that a former employee who accessed an employer’s servers using his login information was not liable for unlawful hacking. The court explained that the employee had not violated the Computer Fraud and Abuse Act (“CFAA”) or the California Comprehensive Computer Data Access and Fraud Act (“CDAFA”).

What is the holding in Enki Corporation v. Freedman?

According to the record, Enki Corporation had entered into a contract with Zuora to provide certain consulting and information technology services. As part of these services, Enki installed a computer resource and performance monitor on Zuora’s network. Additionally, Enki contracted with Keith Freedman, a former employee, to provide consulting services for Zuora. Enki subsequently terminated its contract with Freedman when it discovered that Freedman was speaking negatively about Enki’s services. Freedman had also accessed the monitor Enki installed on Zuora’s network using his employee login to download Enki’s proprietary information (e.g., private company files and data) from the servers. The court held that this did not violate the CFAA because Enki had failed to show that Freedman accessed the computer system without authorization. Since the CFAA is aimed at regulated access to protected data, not the misuse of such data, where employers lawfully access servers, there is no CFAA violation. As for the CDAFA claims, the court also did not find a violation because Freedman did not have to “hack” into the system because he did not have to override a computer code. He simply logged in using his employee login information.

Continue Reading ›

Published on: | by

With the advent of virtual currency, consumers can now conduct entire transactions online without the burden of having to seek a common currency. Bitcoin has spread across the world as a popular form of this currency. In turn, transactions can now take place without switching from one form of currency to another (e.g., conversion from U.S. Dollar to Euro). On March 25, 2014, the Internal Revenue Service (“IRS”) issued guidelines regarding its approach to virtual currency, such as Bitcoin. Under these guidelines, the IRS will treat virtual currency as property, not currency, for federal tax purposes. Accordingly, the tax principles that typically apply to property will now apply to transactions involving virtual currency.

What Is Bitcoin?

Bitcoin is a form of virtual currency.  An unknown individual using the alias Satoshi Nakamoto created Bitcoin in 2009. This virtual currency allows for online transactions without bank issued transactions fees. People store their Bitcoins in a “digital wallet” on a personal computer or on the cloud. This serves as an online bank account, which can send and receive Bitcoins. Then, people use this currency to conduct transactions. However, unlike funds stored in a traditional bank account, the Federal Deposit Insurance Corporation (“FDIC”) does not insure Bitcoin wallets. Furthermore, transactions can now take place entirely anonymously. Online consumers do not have to provide bank accounts or other financial information. Therefore, it becomes nearly impossible to trace transactions using virtual currency. Bitcoin is becoming increasingly popular and more merchants accept this currency for all types of transactions. International transactions can also take place without fees from foreign countries or conversion fees. Consumers can also “mine” Bitcoin, which involves competitions to solve complex computer-based math problems to win additional Bitcoins. Bitcoin is also a valuable investment, with people purchasing Bitcoin to profit from increases in its value.

Continue Reading ›

Published on: | by

Often times legal disputes can involve foreign entities or even foreign laws.  Where these disputes also deal with the United States, domestic laws will come into play.  In 1958, the United Nations adopted the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, which is also called the New York Convention.  It requires contracting state courts to give effect to agreements to arbitrate and to recognize arbitration awards.  Indeed, parties can enforce international arbitration awards in the United States through federal courts.  However, as Toho Towa, Ltd. v. Morgan Creek Productions demonstrates, state procedural laws can help parties collect international awards.

What Did the Court Hold in Toho Towa, Ltd. v. Morgan Creek Productions?

In this case, the Second District Court of Appeal applied an international arbitration award and allowed the claimant to enforce the award against a parent company that did not participate in the initial arbitration.  The claimant in this case was Toho Towa, Ltd., a Japanese corporation.  Morgan Creek International B.V., a Dutch entity, and Morgan Creek International Ltd., a Bermuda corporation were the original respondents.  The dispute involved an agreement among Morgan Creek International BC, the signatory; Morgan Creek International, Ltd., the guarantor; and Toho Towa, Ltd.  The agreement dealt with the right to distribute the movie “The Good Shepherd” in Japan.  The original arbitration award rewarded over $5 million to the claimant.  Toho Towa then petitioned a California state court to confirm the award.  According to California law, (Code of Civil Procedure § 1287.4) the international arbitration award effectively became a court judgment.  However, Toho Towa soon learned that the subsidiary companies did not have the resources to satisfy the judgment.  Once again, Toho Towa petitioned the California courts to add the parent company, Morgan Creek Productions, as a debtor on the judgment.  This meant that the parent company would now be liable for the full judgment.

Continue Reading ›

Published on: | by

Tort litigation, unlike criminal litigation, involves civil wrongs committed against a party or entity–such as a corporation. A plaintiff must demonstrate in court that the defendant is liable for plaintiff’s damages to be successful in a tort case. Mass tort litigation involves very much the same concepts except the number of plaintiffs and defendants is different. Specifically, mass tort litigation involves large numbers of plaintiffs who have suffered an injury at the hands of the same defendant, or group of defendants.

What Is Mass Tort Litigation?

Mass tort litigation involves a single wrongful act that results in harm to several victims. These types of cases involve many plaintiffs, who are all suing defendants for the wrongful act. Generally, mass tort litigation involves cases where a large group of plaintiffs are injured by defective drugs, or defective products. Cases dealing with defective drugs, or pharmaceutical claims, deal with medical products that have caused injury to consumers. These cases include both over-the-counter and doctor prescribed drugs. Alternatively, defective product cases involve consumer product claims where plaintiffs have sustained injuries, or even died, from defective products. Courts must grant permission for parties to proceed with mass tort litigation. Courts will look to see how many plaintiffs are involved, how far these consumers are located from one another, whether there are similar injuries among the plaintiffs, and whether the injuries come from a common cause or product. This last factor is necessary for a mass tort case. Otherwise, courts balance the other three factors to determine whether a case is properly deemed mass tort litigation.

Continue Reading ›

Published on: | by

In September 2013, California’s legislature enacted a new “Do Not Track” law–Assembly Bill 370 (“AB-370”)–that requires websites to disclose their practice of tracking consumers’ personal identification information. The new law may be the first step towards universal anti-tracking standards, which will provide greater protection over the Internet for online users and their personal information. According to the executive director of the Center for Digital Democracy, Jeff Chester, at the very least the new law is a signal to websites that political bodies are mobilizing to protect online consumer privacy.

What Are the Provisions of California’s “Do Not Track” Law?

Under AB-370, any website that collects personal information from online users will have a duty to disclose the specifics of their tracking behavior to consumers. The “Do Not Track” legislation requires that websites inform consumers their protocol for responding to do not track signals (“DNT signals”). For instance, consumers who use Mozilla Firefox have the option to request that the browser not track the users’ personal information. However, Mozilla is still under no legal obligation to follow this request. AB-370 also addresses any practices that allow third parties and sites to access and use consumers’ personal information. Specifically, the new law requires websites to disclose whether they grant third-party access to personal information the website has gathered from online users. This law does not prohibit websites from continuing to track personal information, or grant access to this information to third parties. Instead, the law aims to improve disclosure standards, so that consumers are better informed of how their online activities can affect access to their personal information.

Continue Reading ›

Published on: | by

The decision of where to register a legal entity–such as a corporation, partnership, or LLC–affects the management and operation of such a business. For example, different states have different tax standards for registered entities, different operational requirements, and ultimately, the law effects businesses differently based on where they are registered. Indeed, legal entities are free to register wherever they prefer. Accordingly, California businesses can take advantage of certain benefits based on where they register. Please contact us today to speak to an attorney about the circumstances and characteristics of your business to decide the most advantageous state in which to register your business.

What Are the Advantages of Registering a Legal Entity in California or Nevada?

Nevada is a favorable jurisdiction where legal entities can register primarily because it does not have corporate or personal income tax liabilities. Nevada also does not have a franchise tax for legal entities. Furthermore, a corporation that is registering in Nevada enjoys an extremely strong defense against attempts to “pierce the corporate veil.” Accordingly, in the event that the corporation is involved in a lawsuit, Nevada’s corporate law makes it difficult for a claimant against the corporation to hold the individual officers responsible for personal liability. In fact, this level of protection for corporate officers stems from a California case. As such, California corporations also enjoy a similar level of protection for corporate officers. Indeed, California also provides heightened confidentiality for corporate officers–a corporation must only disclose its corporate director and resident agents, not its stockholders. Also, California provides corporations with a greater level of flexibility in its management. Other than requiring a president, secretary, and chief financial officer, California corporate law allows corporations to organize as they see fit.

Continue Reading ›