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Some of the most important business assets you own maybe your methods and procedures.  Among the most important characteristics that make up your business may be intangible things like methods and tactics that contribute to your success or intellectual property in the developmental stages that may not be ready for copyright or trademark protection. So how do you protect these important things if you decide to discuss your business with a potential partner or interested buyer?

What is a Non-Disclosure Agreement and why should I use one?
A Non-Disclosure Agreement (NDA) contains contractual obligations between parties that are discussing confidential or nonpublic information. Parties in negotiation usually utilize a Non-Disclosure Agreement but the promises and obligations in the agreement survive the negotiations and are enforceable in court if the provisions are breached. The use of this type of document allows parties to a negotiation to confidently disclose confidential information that they would not otherwise wish to share.
If you are considering selling your business to a competitor, would you be comfortable sharing your most sensitive information in negotiations without being certain that the negotiations will result in an agreement to purchase your business? Probably not unless the information you share cannot be used by the other party for any reason other than the consideration of the purchase of your business.
The same issues arise of you are considering bringing in a business partner to provide an investment in the business or to work with you in the future. Certainly you would not want to share information that would allow anyone to compete with you using your ideas and confidential business practices.

The essential element of a Non-Disclosure Agreement is confidentiality.
In the typical NDA, all parties to the negotiations agree to protect each other’s confidential information from disclosure to third parties and to refrain for any use of the information other than the consideration of a future relationship. The prohibitions in the Agreement should always survive the negotiations and be separately enforceable in court with certain damages available in the event of a breach of the Agreement.

Protect your business.
Contact an experienced business attorney to assist you if you are thinking about selling your business or taking on new partners. Questions about Non-Disclosure Agreements or other business law issues? Call Gogel & Gogel or visit us on the web at http://www.gogel-gogel.com.

The post Intellectual Property and Using a Non-Disclosure Agreement appeared first on Gogel & Gogel.

You have decided to open a new business in Massachusetts. Congratulations. Now what should you do first? Retain an experienced Massachusetts business attorney that can answer the following question:  What is the best entity for starting a business in Massachusetts?

The post Opening a New Business in Massachusetts. appeared first on Gogel & Gogel.

According to newly released Guidelines social media ads may not be deceptive or misleading.

The Federal Trade Commission (FTC), the federal agency that regulates advertising disclosures, has weighed in on the issue of social media advertising by announcing last week that it had updated the so-called “DotCom Disclosures” Guidance released in 2000. The new guidance points out that advertisers using space-constrained ads, such as on some social media platforms, must still provide disclosures necessary to prevent an ad from being deceptive. Advertisers cannot make the required disclosures through pop-ups, because they are often blocked according to the Guidelines.

What if the required advertising disclosures will not fit in the available space?

According to the new Guidelines, if “a disclosure is necessary to prevent an advertisement from being deceptive, unfair, or otherwise violation of a Commission rule, and it is not possible to make the disclosure clearly and conspicuously, then that ad should not be disseminated. This means that if a particular platform does not provide an opportunity to make clear and conspicuous disclosures, then that platform should not be used to disseminate advertisements that require disclosures.”

Why pay attention to Staff Commentary and Guidance?

Often Staff Commentary and agency Guidelines are road maps to enforcement policy.  The agency is notifying those covered by the rules or regulations under what circumstances it will begin an investigation that could lead to enforcement activity.

How should you comply with the disclosure requirements?

Possible Twitter solutions mentioned in the Guidelines suggest using “Ad” at the beginning of an advertising Tweet, or using the word “sponsored”.  It is also important to insure that disclosures are readable on mobile devices as well.  A hypothetical example of an inappropriate disclosure noted by the Guidelines concerned the use of the hashtag #spon because this use could be unclear to consumers.  But be careful, if the nature of the advertising requires additional disclosures based on traditional consumer protection principles, it is clear that particular social media platform may not be appropriate for that content.

What about Tweets that are really celebrity endorsements?

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We have discussed conducting background checks in employment. You can review that post here: http://bit.ly/VFmk2P.  What should an employer do if it wishes to deny employment based on the result of a criminal records check?

Understand recent enforcement guidance.

There has been recent discussion concerning the Equal Employment Opportunity Commission’s (EEOC) Guidance on this issue.  While a criminal offender is not a member of a protected class for the purposes of a civil rights or discrimination analysis, the EEOC uses a disparate impact theory to determine if a disappointed potential employee has a claim against an employer.

Simply put, a disparate treatment theory attempts to determine if the policy of the employer improperly impacts a particular segment of potential employees that may be in a protected class of individuals.  If the policy can be shown to disproportionally affect a protected class of individuals than the employer could face liability.

An important step in denying employment based on the results of a criminal record check is to determine if the offense has a direct relationship to the job duties of the potential employee.  If so, that relationship must be well documented before an employer makes an unfavorable employment decision.

If an employer cannot connect the criminal conviction to specific job responsibilities of the potential employee, that conviction should not be used to deny employment.

Should an employer simply abandon the use of criminal record checks?

Why not just forget about conducting criminal record checks because it is to risky to make an employment decision based on the results of that check?  We cannot recommend that course of action because an employer may be liable to its other employees or members of the public who are harmed by an employee under the legal theory of negligent hiring.

The solution, conduct background checks with the benefit of the advise of experienced employment counsel.  If you have any questions or concerns about the hiring process, call Gogel & Gogel.

The post Employers: Can you deny employment based on a criminal background check? appeared first on Gogel & Gogel.

Make your post petition mortgage payments on time.

Once you have filed a bankruptcy case, each and every mortgage payment that is due following the date of the filing must be paid when it is due. These are called “post petition” mortgage payments. The Bankruptcy Code requires that a mortgage lender (and any other creditor with an interest in your property) be paid regular monthly payments after the case is filed. The payments that were not made prior to the filing are made under the Plan of Reorganization that must be filed with the bankruptcy case or shortly thereafter. These missed payments are called “pre petition payments”. If you fail to make post petition payments the mortgage lender will ask the Court to allow it to have relief from the automatic stay on collection activity so that the mortgage foreclosure may continue pursuant to state law. While this action does not end your bankruptcy case, it does end the protection you have gained against a mortgage lender’s foreclosure.

A Bankruptcy Reorganization Plan does not change the terms of the mortgage on your principal residence.

While you have the right under the Bankruptcy Code to repay your pre petition mortgage payments under your Plan of Reorganization, you cannot alter the interest rate or the other terms of the residential mortgage. You must pay the arrears in full (missed payments) over thirty or sixty months depending on the terms of your Plan.

Do not miss a Plan payment.

A Bankruptcy Trustee will be administering your case. If you miss a scheduled plan payment the Trustee may ask the Court to dismiss your case.

If you decide to finance or get new credit, get the permission of the Court before you finalize the transaction.

You may decide that you want to refinance a mortgage that is being paid under a Plan of Reorganization. You may do so but only with the permission of the Bankruptcy Court. Do not enter into any new financing agreements without consulting with your bankruptcy attorney.

Filing a Bankruptcy Reorganization case is complex.

Bankruptcy Reorganization cases are rarely successful without the assistance of experienced counsel. If your case is dismissed for failure to follow the rules or the instructions of the Bankruptcy Court you may be prohibited from filing another case for a period of time and you may be unable to avoid a rescheduled foreclosure sale.

The post So you have stopped the Foreclosure by filing Bankruptcy. Now What? appeared first on Gogel & Gogel.

A pre employment background check in an acceptable screening tool but it must be
undertaken utilizing the correct forms and with the appropriate disclosures to the
potential employee. The necessary disclosure forms changed at the beginning of
this year with the requirement to use a new form drafted by the Consumer Financial
Protection Bureau (“CFPB”).

Why is proper documentation and disclosure important? What if you decide not to
hire the employee? Why should you disclose your internal review process?

The simple answer is because Federal Law (The Fair Credit Reporting Act “FCRA”)
requires disclosure if an employer intends to make an adverse employment decision
based on review of credit reports or criminal background checks.

Appropriate authorizations and disclosures must be made before these reports
are accessed in additional to post review disclosures concerning adverse hiring
decisions. Earlier this month, K-Mart agreed to settle a class action case filed by
60,000 jobs applicants that were denied employment after background checks but
who were not notified of the reason for the adverse action nor given the chance to
challenge negative information that was revealed in the background check.

You must also be cautious regarding the use of applications marketed for your
mobile devices to conduct background checks. There is no substitute for proper
disclosure. An application provider learned this lesson when the Federal Trade
Commission (“FTC”) filed a complaint against it for failure to comply with disclosure
requirements. The application was marketed as a tool to allow employers to
search criminal records on their mobile devices, but the application company used
a disclaimer that informed users that the application was not complaint with the
FCRA and that the product should not be considered an employment-screening tool.
The FTC argued to the contrary utilizing the company’s own advertising to bolster
its case. Again, a substantial settlement was required to end the case.

The bottom line, you can not outsource disclosure and recording keeping
requirements when conducting employment background checks so get it right or
face liability. At Gogel & Gogel, we have advised many successful businesses on
employment law issues and can guide your business over the regulatory hurdles.

The post Attention Employers. Conducting Employee Background Checks? Get It Right, Or Else. appeared first on Gogel & Gogel.

“Is there anything proprietary about this product?” To which the business owner
replies, “not yet”, and this is followed by the inevitable comment, “well what keeps
your competitors from stealing this idea?”

Usually, an investment is not forthcoming because the investor points out that
there is not any value in something that is not protected. It is only a television
show, true, but the participants are making real world investment decisions, and
are all seasoned business people. They know what you should know protecting
your intellectual property increases the value of the business and protects you from
copycats.

In the real world, bad things happen to business owners who do not protect their
marks. At Gogel & Gogel we represent many retail businesses and restaurants. A
few years back a business looked to the law firm for a remedy to a problem that
developed when owners of a successful restaurant decided to go their separate
ways. One owner was staying and the other was moving across the country. Even
though there was a substantial cash payout to the departing partner, there was no
agreement concerning competition or ownership of service marks and the marks
had not been protected by registration.

We got involved only after the departing owner had set up shop across the country
using the same name and menu of the business that he left behind. As you can
imagine, this is a little like closing the barn door after the horses have already run
out. While the result in this case was consistent with the client’s expectations, it was
not an easy case due to the lack of protection for the unique aspects of the business.
Like the owner in the “Shark Tank” there was nothing protecting the business from
a competitor stealing his ideas, even his former partner.

Protect your business assets from your competition and add value to your company.
We can help and you can find us on the web at http://www.gogel-gogel.com.

The post Protect Your Ideas and Your Business. A Trademark Primer appeared first on Gogel & Gogel.

Eddie Holman, a singer who had a top ten hit in 1970 with the song “Hey There Lonely Girl”, filed a lawsuit against Alicia Keys alleging that her song “Girl Is On Fire” contains a sample of the music from “Hey There Lonely Girl”.  According to reports, the use of the sample only came to his attention when a music industry blogger wrote about the use.  Ms. Keyes did not give Mr. Holman credit for the use of the small portion of his song.

The alleged use of the sample is only about two seconds according to the blogger Roger Friedman who first wrote about the issue for Showbiz411 on November 25, 2012.  Mr. Holman comments on the blog several days later, thanking Mr. Friedman for “recognizing an important part of Lonely Girl in Alicia Keys new recording.”  Mr. Holman filed the lawsuit in December and quoted the blog in the complaint.

Many people have short hand knowledge of the Copyright Act that is mistaken in the belief that you may use a small portion of a copyrighted work without permission.  This is a misstatement of the so-called “Fair Use Doctrine”.  You may only use a portion of a copyrighted work without permission for uses such as commentary, criticism, news reporting, or scholarly reports. (17 U.S.C. §107)

There is no “fair use” of another’s work for commercial purposes.  Cases of copyright infringement turn on the factual issues concerning the similarity of the two pieces of music.

Copyright or intellectual property issues? Call Gogel & Gogel to protect your intellectual property.

The post Fair Use or Misuse? A Copyright Primer appeared first on Gogel & Gogel.

EEOC, NLRB, CFRB; what are all these things and why should you care if you are an employer?  Here is cryptography guide.

Does your attendance policy require a doctor’s note identifying the nature of the absence?

The Eight Hundred Pound Gorilla of Employment Regulations.

The Equal Employment Opportunity Commission (EEOC

A key ruling from the EEOC in 2012 held that requiring a doctor’s note identifying the nature of the absence from work violates the Americans with Disability Act that prohibits discrimination in employment based on a disability.  The EEOC is charged with enforcing this statute and most employment lawyers believe this decision is an expansion of employee rights under the ADA.

Does this policy implicate collective bargaining rights? Probably.

The National Labor Relations Board (NLRB).

Social media policies violate the right of employees to bargain collectively if they prohibit disparagement of the employer but are written too broadly.  Your employment manual probably contains a prohibition similar to the language below:

Employees should be aware that statements posted electronically (such as to online message boards or discussion groups) that damage the Company, defame any individual or damage any person’s reputation or violate the policies outlined in the Employee Agreement, may be subject to discipline, up to and including termination of employment.

Seems reasonable, but in ruling on the language of the above policy an Administrative Law Judge at the NLRB in a 2012 case held that employees could reasonably conclude that the policy prohibited them from engaging in protected communications.  The policy was determined to encompass a prohibition that was too broad in that it failed to exclude protected communications.

The NLRB recently restated its position that social media comments maybe protected and that it may be unlawful for an employer to discipline or discharge an employee over social media comments.

Screening employees using a credit report or a background check?

Beware the Consumer Financial Protection Bureau (CFPB).

The Fair Credit Reporting Act already protects consumers from misuse of their credit reports, but a new federal agency, the CFPB, says that isn’t enough. Any employer who uses credit reports of background checks to screen employees must use a new Summary of Rights Form drafted by the CFPB for screenings after January 1, 2013. Great, another government form.

Most of these agencies have already announced plans for aggressive enforcement actions in 2013.

Happy New Year.  Questions or concerns about employment law in 2013?  Call Gogel and Gogel in Berkshire County, Massachusetts at 413-528-2698, or in Springfield Massachusetts at 413-788-5683 or visit us on the web, http://www.gogel-gogel.com

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