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Forget Hamlet. “To Click or Sign, THAT is the Question!”

In daily life today, most of us put our electronic “John Hancock” on the screen every day, whether at the grocery store, drug store or other businesses.  We’re used to it as a perfectly valid way to seal- the-deal for routine retail transactions.

But what about other forms of documents, such as business contracts or wills and trust? Are electronic (no ink, no paper) signatures valid?

The answer is MAYBE.

For more than ten years, the US has been a signator to The Electronic Signatures in Global and National Commerce Act (ESIGNA) which makes e-signatures just as valid as the ‘wet signatures’ on paper. “E-signatures” come in many forms, such as:  (1) typing a signature into a space as directed on a form; (2) copying and pasting a scanned versions of the signer’s name; (3) using one of the cryptographic technologies available that scrambles information of the sender and allows the receiver to unscramble; or (4) clicking that ubiquitous, “I ACCEPT” button before software is enabled.

So, the ESIGNA allows business to proceed efficiently with the foregoing methods of “e-signatures.”

But some documents still MUST be signed the old-fashioned way in order to be valid.  What is “old fashioned?”  Using a pen and signing your name on piece of paper. These types of documents include:

  • WILLS, CODICILS AND TRUSTS
  • DOCUMENTS RELATING TO ADOPTION AND DIVORCE
  • COURT ORDERS, NOTICES AND OTHER DOCUMENTS LIKE PLEADINGS AND MOTIONS
  • NOTICES/DOCUMENTS RELATING TO
    • DEFAULT, FORECLOSURE, EVICTION, REPOSESSION
    • CANCELLATION OF HEALTH OR LIFE INSURANCE BENEFITS
    • HEALTH & SAFETY PRODUCT RECALLS
    • TRANSPORTATION OF HAZARDOUS MATERIALS

You’ll notice that the above list has a common thread – all the types of documents mentioned pertain to personal, health and safety issues.  And even if you do have that original document, whether you need to provide a copy of that original “wet signature” document for a transaction here or abroad  (from  filing a deed with the county record or  applying for a foreign tax subsidy) will depend on a number of factors, including the intent of the parties.

In today’s marketplace for routine business transactions between private parties, contracts often have a clause that provides: A facsimile copy and signature or electronic signature shall be deemed an original for all purposes herein.

People routinely sign contracts, scan them into their computer and send those scanned signature pages around the globe for counter- signature with the parties honoring the scanned documents as originals.  Keep in mind, however, that you should consult with your lawyer to make sure that your particular document has been properly executed and maybe even notarized or given an “Apostile” status as required for some purposes internationally.

TV Series 'Veronica Mars' Finds Crowd Funding

Crowd funding is hot! It has taken form in recent years, allowing anyone with a project, cause, or company to secure donations online in exchange for various gifts, or simply just for the sake of donating. Typically, sites like Kickerstarter, Indiegogo and Rockethub serve as conduits for the campaigns and their gift givers.

One recent example is Veronica Mars, the defunct TV series now poised to be a motion picture thanks to its wildly successful crowd funding campaign. Veronica Mars' Rob Thomas spearheaded the capital raising campaign via Kickstarter, attracting 91,585 backers donating over $5.7 million dollars! Not bad for what typically turns out to be a thirty day time frame. While not all campaigns are successful, the amount of money raised by this budding industry has caught the attention of Congress.

In April of 2012, the President signed the JOBS ACT and TITLE III of that Act permits equity crowdfunding: selling shares or units in your company in exchange for cash. Until the SEC issues rules as required by TITLE III of the Act, it's still illegal to offer equity in exchange for investments online; however, once that happens, we will see a whole new industry blossom. Entrepreneurs and other business people will be able to use third party intermediaries to conduct campaigns to raise capital online. There are parameters upon how it all works-the devil is in the details, but it's expected that sometime this year those rules should be in place to make this a reality.

Perhaps Veronica Mars could have set up a campaign for equity crowd funding, seeking investment in its production company. The cap per twelve month period for the production company would be $1 million; and the investors would have a stake in the company, but perhaps if you have a well known brand like Veronica Mars, you might want to stick to the donative model that they used (they raised more money). If you are the "next" Veronica Mars and don't yet have brand recognition or a proven fan/customer base, perhaps you might want to use the equity model (once legalized) so as to incentivize investors that even though you can only raise $1 million per year, investors may possibly make more on a return (the donative concept doesn't allow any return-it's just a gift).

Time will tell how this space evolves, but one thing is for sure, it will be a show worth watching!

Crowd Funding: The Rules of the Game

Imagine that you need to raise $100,000 for your business. With limited options, you seek the internet as source of funds. You place a campaign on a third party website that allows you to reach infinite amounts of people, who may want to donate to your cause in exchange for different types of creative gifts you offer in return. A California based company, Pebble Technology did just that and surpassed its $100k goal to set an incredible record of securing over $10 million dollars in just thirty days! Granted, this is probably the highest campaign to date; however, it begs the questions: How did they do it and what are the rules of the game?

Well, as most entrepreneurs know, access to capital has been increasingly difficult for small businesses, which in turn affects jobs, tax revenues, and a host of related areas.  Fortunately, on April 5, 2012, the Jumpstart Our Business Startups Act (JOBS) was signed into law, allowing crowd funding to exist as a way to infuse much needed capital into the business sector.  Crowd funding is a way for the "crowds" to invest online in ventures of their choosing in exchange for equity.  Currently this does not comport with securities laws; however, the Securities and Exchange Commission (SEC) is actively setting forth rules that implement the JOBS Act provisions on crowd funding, so that the balance between access to capital and reduction/prevention of fraud can effectively be balanced.  One of the key issues relates to third party websites that serve as a conduit between the entrepreneur and the investor. These portals are the subject of debate in terms of how their role will be shaped to effectuate that balance of providing access to capital and protecting from investor fraud.  While sites currently exist under the donative (gift) model, where causes, business, and various projects have sought funds in exchange for gifts, this area of business and law is about to propel to new levels, particularly once the SEC and FINRA (Financial Industry Regulatory Authority) rules are established.

Are you ready to Franchise your Business?

Do you have two or three restaurants with a signature look and feel? Or a specialty clothing store with a brand name, concept and systems for doing business? Or perhaps a service you provide that can be duplicated by others? You may already have other stores where you have licensed the trade name to another individual or entity and entered into distribution agreements for the specialty merchandise; however you may now be ready to franchise your business. Licensing and franchising are two different legal tools and you want to ensure you are using the right one to avoid unpleasant consequences. Franchising can be a great vehicle for driving your business forward, but you must ensure compliance with federal and state laws. They mandate that if you are offering or selling a concept, you must register with the appropriate state authorities, depending on the jurisdiction. You will need an experienced franchise attorney to guide you through the details of this process, so you can focus upon building your business dreams.

 

Creating Related Businesses: How Robbing Peter to Pay Paul Could Wipe Out Peter!

Often time companies will have the need to create related businesses to their core business.  While in theory this is great, in practice it can be more than problematic.  For instance, you are the key shareholder in a product company.  You see great opportunities that relate to your product company by setting up a transportation company that can ship your products and possibly others’ products within the industry.  You also see the opportunity to establish an insurance company that insures your products and again, possibly those of others’ in the industry.

Excited about the potential revenue that you can capture, you have these two additional entities created.   You also take money from your product company and place it in two new bank accounts for these two new companies that you now own.  As time goes on, these new companies need additional capital in order to sustain themselves and reach your goals.  You have bills for each of the new companies paid out of the product company.  You also have employees working on all three companies, but only have their payroll taken from the product company. In addition, you mix and commingle money, assets, and human capital between all three of your business entities—because, after all—they are all your companies.

Is there a big deal?  Yes! Why? Because by failing to maintain and operate all three entities separately, you have now risked liability from each of these companies as to the other.  For example, if the transportation company gets sued and is subject to damages as a result, the lack of keeping all the “eggs” of each company in their own “basket” now permits the plaintiff to reach assets of the other companies.  If the product company has cash flow and/or sizable assets, your operating the three companies interchangeably has now put your product company at risk.

Therefore, it’s important to ensure that each company operates as if it has three different owners, notwithstanding that you are the only owner.  One example of operating under complete separateness is the following:  If one company needs cash, make it a loan, document it as between the two companies, and ensure that the company who needs the money pays its bills from its bank account with that loan money.

Operating completely separately may take some getting used to; however, it beats having to risk everything you worked for to build up that product company.  Making sure you have the right systems in place in the short run, will position you to try to reach your goals in the long run.

Balancing Act: How Attorneys Play a Key Role in an Entrepreneurs Vision

Entrepreneurs, you are indeed risk takers. You are "idea" people with creative minds constantly thinking outside of the box. Most of you do not know that there is a box. Attorneys, on the other hand, are trained to stay in the box and to spot the potential pitfalls that could cost a company time, money and possible lawsuits. While there is nothing wrong with thinking outside of the box, every business owner needs the right business attorney to balance your entrepreneurial spirit with the perimeters of the law. While this may sound confining to you, the visionary, a good business attorney allows a company to grow by keeping the impediments of a lawsuit or other disputes at bay. Entrepreneurs, we know you see attorneys as wardens, doling out warnings and restricting your ideas, but in actuality we share in your vision. We just help you minimize risk to get there and beyond.

How do we effectively combat international online piracy?

Article Published in the Los Angeles Daily Journal - Vol. 125, No. 021

Online piracy problem calls for global attack,
not US business-based approach

By Joe Donnini

The power of the Internet continues to show its strength, whether it stems from intellectual property pirates or from mass online opposition to laws proposed to stop international online piracy. The online communities’ recent efforts in mobilizing millions to express opposition to the Stop Online Piracy Act are arguably unprecedented. Companies such as Google, Wikipedia and others rallied support to table Rep. Lamar Smith’s (R-Texas) online piracy bill. The bill’s goal is to curb international online piracy from foreign rogue sites. It’s alleged that these sites cheat U.S. companies out of millions of dollars in revenue and purportedly cost substantial U.S job loss, according to backers such as the Motion Picture Association of America and the U.S. Chamber of Commerce.

The two powerful groups involved in the controversy are the entertainment industry in Hollywood and technology companies. While Hollywood argues the legislation comports with the bill’s goals, the technology companies stress that, as written, the law places an undue burden on online businesses by forcing them to police the Internet, threatens Internet innovation and free speech, and blocks access to entire domain names if infringing material is placed on a blog or single webpage. Technology companies also contend that the bill’s ambiguous language creates the risk of unfettered online policing of companies without any real checks and balances. While this battle seems to have reduced to a simmer, another option has been introduced; one that is more palatable to the technology industry, but still not embraced by Hollywood and its supporters: the OPEN ACT (Online Protection and Enforcement of Digital Trade Act). This legislation aims to stop money transfers to foreign websites that “primarily” and “willfully” infringe upon the rights of U.S. intellectual property holders. Whereas the Stop Online Piracy Act (and also its cousin, PROTECT IP) sought to have an entire site taken down even if the infringement is contained in just one page or one blog.   ...<Continue Reading>

Going Mobile: 5 Tips on Mobile App Creation

Do you have the next great mobile app idea? Here are 5 tips on the legal side of Mobile App Creation:

Due Diligence. Basically, do your homework. Google your idea and find out if a similar app already exists. Its better to do the leg work at this stage of the game then down the road when you have put money into development.

Preliminary Protection. A lot of the time, people want to talk about their idea to gain feedback or simply want to talk about it out of pure excitement. Please don't ... unless, of course, you have a signed Non-Disclosure Agreement. Not all NDA's are the same. This is such an important point in the early stages of development that I am going to state it again: Not all NDA's are the same. You need one specifically for Intellectual Property Rights. Also, be careful of other parties, such as Mobile App Developers, asking you to sign their NDA. Most likely it is written to protect their company's interest and not yours. Have a lawyer read it over to make sure that you are keeping full control of your intellectual property.

Ownership. Who owns the intellectual property? Once the app is built, who owns the rights? Did you use a work-for-hire agreement*? Are there multiple authors meaning joint ownership? Or, is it just you? Ownership must be established before you can take the next step and acquire advanced protection.

Advanced Protection. Can't I just copyright the idea? Unfortunately, you cannot. However, you can copyright the code used to write the app, artwork, text, etc. In order to keep the copyright in your name, you would need to write the code yourself or hire a programmer on work-for-hire terms. Once the code is written and artwork designed, then it can be filed for protection with the copyright office. At this stage, you can also search to see if your app is something that can be patented. To be on the safe side, register all your materials with the copyright and patent office before the app is launched.

License / Assignment. For most people, this is the most important part because this is how your app makes its revenue. One of the more common ways is by having companies or individuals purchase a license to your app. There are two types of licenses: exclusive and non-exclusive. An exclusive license means you license your app to a company or individual with exclusive terms of use such as a certain geography or client base. For example, Company A wants an exclusive license for North America. This means you cannot license your app to another company or individual in North America. You could, however, give an exclusive license to Company B in Europe. A non-exclusive license allows you to licenses to Company A in North America, but also to anyone else who would want to purchase a license in North America.

Another option is an assignment. In an assignment, you have the option to sell all your rights or sell (or assign) select rights that you have in copyright. For example, in a copyright, you can assign the right to reproduce and the right to distribute, but you might retain the right to make derivatives. Remember, with any assignment, whether you are assigning all or part of the various rights, you are selling your ownership, just as if you were selling your house.

* Work-for-Hire describes works that are produced for somebody else. The person who hires the creator holds the copyright to the finished work.

Related posts:

Does your Business Need Cash?
See the four part series on Starting a Business:
Part I: Laying a good foundation
Part II: More than one owner
Part III: Safe-guard your product
Part IV: Choosing your Corporate Counsel