I want to take the time to thank my clients that have made 2009 such a special year. I am very fortunate to work with some of the best people I know. A big thank you to the regular readers of this blog. As I enter the 4th year for Rush on Business this coming March it's always nice to know that I have support from so many.
Have a great Thanksgiving holiday!
The Franchise King has a great list of 20 small business blogs that have the right stuff. These blogs possess some of the best content on the Web when it comes to small business. Be sure to check them out!
I had the pleasure of sitting down for an interview with Michael Libbie yesterday. We talked blogging, discrimination cases, franchising and other issues.
If you didn't catch it live you can watch the podcast here. (The interview begins at about the 30 minute mark).
If you haven't heard about Des Moines Local Live, you should check it out. It's an Internet radio station with 50 local radio hosts talking everything from business to sports. A real testament to Des Moines' Internet-blogging presence.
A few weeks ago I posted on how your spouse could get you fired. Well, its not just your spouse you need to worry about. What about your kids?
A recent Family Circle article discussed how a teen's post got her father fired. The father apparently could not get time off to attend his daughter's school musical. The daughter was upset and vented about it on her MySpace page. The article says she stated she didn't want to work for someone like dad's boss: "He yells all the time, treats my dad like dirt, won't let my dad spend time with his family even though he gets to take time off constantly, and doesn't even know how to do his job."
Unfortunately, the rant went out to several hundred of the girl's MySpace friends, including kids at school, one of whom was the boss' son. The boy showed the post to his father and the girl's father was fired.
All of this underscores the importance of discussing with your kids how "public" information can become. Even if an account is private, that doesn't mean that one of your kid's friends won't share the information with the rest of the world.
P.S. Sorry I couldn't find a link to the article online but check out the October 17, 2009 edition of Family Circle magazine for the article, Share Tactics. There are several examples of how today's teens have no problem revealing every detail of their lives online.
A jury recently found a Union County Board of Supervisor, Mike King, not guilty of disorderly conduct after half hour of deliberation. Brick Gentry's Matt Brick and Doug Fulton defended King in the case.
For details on the case please read Matt's blog post regarding the intersection of employment law and criminal law.
Tiger Woods is the greatest golfer of his time. He was such a lock going into the weekend of the PGA Championship that an Irish bookmaker actually paid out the winnings on Tiger before the third round even started -- oops! I'll admit that I never could have imagined Y.E. Yang would actually pull it out for a victory.
But all of this provides a good lesson about trial law. You just never know what will happen when you go in front of a jury or judge. The case you thought was a lock may not be so. When we are in the role of representing the underdog (which is often the case) I love it when the other side says we can't win. It motivates us, and frankly, it takes much of the pressure off. If you're not supposed to win you have nowhere to go but up!
So thanks, Y.E.. You proved why the game must be played, no matter who is in the lead (or who thinks they have the case that can't be beat).
How Business Gets Done, Words of Wisdom from Central Iowa Experts has hit the virtual bookshelves at www.lulu.com. I am honored to be a contributing author with several respected peers in our business community. My chapter is on the Partnership Prenuptial where I discuss the importance of drafting a buy-sell agreement from the beginning of your business relationship.
The costs of litigating a business dispute can easily run in excess of $100,000 per side while a buy-sell agreement usually costs less than a a couple of thousand dollars. Unquestionably most business owners would rather concentrate on running their business than spending time in court.
The case of Scott Janke, the former town manager of Fort Myers Beach, Florida has many people talking. It's no ordinary employee termination. Janke was terminated because his wife is an adult entertainment star.
A good article on the subject comes via Jonathan Turley's res ipsa loquitur blog. Turley's blog has been included in the Top 100 Legal Blogs in the ABA Journal and the Best Blog in Legal Theory. As you will read in the article, employment terminations of this nature are becoming more and more common.
Due to a fantastic baseball season as the coach of nine year olds the posts have been few and far between the last couple of months. (I routinely write at night and it's been tough to fit it all in). I'll resume more regular posting very soon. Frankly, I am flattered by the number of people that continue to read this blog even though the posting has been sparse lately.
In the meantime, be sure to check out Iowa's newest law blog, David Nelmark's Mixed Martial Arts Law Blog. It's a fascinating niche blog and David is a great writer. He is also not shy about taking on bloggers he doesn't agree with. Should be a fun blog to follow. It's great to see some great new Iowa law bloggers getting into the action.
There has been considerable interest in raising venture capital among several entrepreneurs in the Des Moines area recently. For those looking to raise capital you won't want to miss an upcoming event sponsored by BIZ.
Matt Kinley, senior vice president of Pappajohn Capital Resources and Equity Dynamics, will be the BIZ guest and speaker at the Business Insights and Networking Luncheon on February 18, 2009. Matt will discuss raising venture capital from the investor's point of view.
Many entrepreneurs do not understand what is expected from their business in order to raise capital. This is a great opportunity to learn from one of Iowa's most respected and active venture capitalists.
The admission fee is $10.00. The event starts at 11:30 a.m., February 18th at the Des Moines Partnership's offices, 700 Locust Street, Suite 100 in downtown Des Moines.
Read my post on IowaBiz for More on Twitter in the Workplace. Twitter is a micro-blogging application that is quickly becoming the new "thing" for business networking and marketing. Chances are you may already have an employee in your business on Twitter. Don't get left in the dark.
Don't believe it's a big deal? Then why are people like @ChuckGrassley and @LanceArmstrong using Twitter?
Blawg Review is the blog carnival for everyone interested in law. A peer-reviewed blog carnival, the host of each Blawg Review decides which of the submissions and recommendations are suitable for inclusion in the presentation. For an example, please read my Blawg Review #147 during which Charlie Longbrief got so tired riding across Iowa that he apparently couldn't post the rest of the year.
It's time for the Blawg Review of the Year Nominations. Those who have ever hosted blawg review or are scheduled to host a blawg review are entitled to vote. You cannot vote for your own. There were many worthy contenders this year. Here are my picks:
Blawg Review #162 - China Law Blog - World peace, basketball and Raquel Welch. What else do you need?
Blawg Review #172 - Ohio Employer's Law Blog - In a year in which Iowans Shawn Johnson and LoLo Jones were the talk of the Olympics, how could I not pick this Olympic themed Blawg Review?
Blawg Review #173 - Chicago IP Litigation Blog - Michael Phelps and Blawg Review. Is there any question I am a sports fan?
Blawg Review #189 - Infamy or Praise - Another masterful performance by the perennial winner of the Blawg Review of the Year.
Twitter is one of the hottest social networking tools. President-elect Barack Obama even used it during his recent campaign. But is it a good idea to allow Twitter in the workplace?
Read my post on IowaBiz to learn more.
I am excited to announce that Rush on Business has been honored as the Best Business Blog and Best Resource Blog in the Iowa Web Awards for 2008. Since I started this blog in March of 2006, I wanted to do my part to improve the public image of lawyers. My strong sense of purpose is to educate and provide information to business people in a way that helps them identify legal issues and make more informed choices about what legal services they need. The collaborative process of a law blog (or any blog) can allow this to happen.
I am grateful to receive the awards. I want to thank 48Web Consulting for its work in forming the Iowa Web awards and also Daniel Shipton of ImpromptuStudio for hosting the awards ceremony. It was a great evening at IgniteDesMoines last night.
Thanks to all that support this blog.
Week one in the Des Moines Franchise Case is in the books. Looks like the trial will last another couple of weeks. In the first week several city council members and officials testified but the bottom line is that this case boils down the the experts and the trees.
As discussed in my previous post, the central issue of the trial is to determine if the franchise fees charged by the city are in fact reasonably related to the City's administrative expenses. In an effort to defend its administrative expenses, the city argues that it costs about $19.6 million per year to regulate utilities in public rights of way. Much of this allegedly comes from improper tree trimming causing more than $4 million in damage each year to trees along 800 miles of streets.
The plaintiff challenged the validity of the number of the trees and also presented expert testimony from an arborist who testified that he could not follow the city's tree survey and found substantially less trees in the public right of way.
For more read this article from the Des Moines Register.
The City of Des Moines utility franchise tax trial begins today. The following is a summary of the procedural aspects of the case and what is at stake.
Initially, the Des Moines had been sued in District Court by Lisa Kragnes seeking to declare the utility franchise fee found on MidAmerican Energy bills illegal. Kragnes won in district court when the judge granted her motion for summary judgment. The City of Des Moines appealed and the Iowa Supreme Court reversed the summary judgment decision.
The Supreme Court reversed the case because it ruled a geniune issue of material fact exists as to whether all or part of the franchise fees are reasonably related to the City's administrative expenses. The Court ruled the grant of the franchises to the utility causes the City to incur some ongoing administrative expenses in the exercise of its police power. These expenses would include the reasonable costs of inspecting, supervising and otherwise regulating the gas and electric utility franchises.
The Court has now remanded the case to the district court for a trial on the merits which begins today. The critical issue is whether the fees charged by the City of Des Moines bear a relationship to the cost to the City of the utility's occupancy of public areas in the City. The Court said the case record is replete with references that the City of Des Moines used a portion of the franchise fees for purposes other than administrative expenses. The Supreme Court, however, ruled that this fact alone does not mean Des Moines is not using other streams of revenue to cover the administrative expenses it incurs as a result of granting MidAmerican the gas and electric utility franchises.
The upcoming trial will determine if the franchise fees are in fact reasonably related to the City's administrative expenses. If not, the district court will then issue an order disallowing the franchise fees as contained in the ordinances and also likely award damages to the plaintiff's class. If the franchise fees are reasonably related to the administrative expenses, the court shall enforce the ordinances up to an amount equal to the fees reasonably related to the City's administrative expenses in exercising its police power.
For more check out this article from the Des Moines Register.
The bailout is not universally popular with Main Street America but the International Franchise Association says a bailout is needed because our credit crisis "threatens to derail the future growth of franchised businesses because it undermines the health of credit markets as well as equity markets."
There is no doubt Wall Street is hoping against all hope that a bailout occurs. If it the legislation isn't passed I have heard pundits predict the DOW could drop as low as 8,000. More banks would fail, retirement accounts would plummet and a lengthy recession could occur.
But I have mixed feelings about this bailout. Should bad business decisions be rewarded? Most of the business people I represent rightly remark, "I don't get a handout, why should they?" Should we just let the market work itself out?
Columnist Rhonda Abrams urges that small businesses need direct help. Some of the areas Congress could help small businesses include giving tax credits for hiring your first employee, credit card fairness, SBA disaster assistance loans and estate tax reform. Generally, franchisees are of the small business variety. It seems they would benefit more if direct help occurred from Congress rather than just bailing out the largest financial institutions in America.
It's tough to know the answers and I don't pretend to be an economist. I have talked recently with several local bankers concerning the current economic climate. The bankers have told me they are still making loans and actually have some optimism for the Iowa economy. That flies in the face of a recent report indicating that West Des Moines is No. 4 on the list of the towns that could be hardest hit by the financial crisis. I hope the local bankers are right.
Congress recently passed the amendments to the Americans with Disabilities Act (ADA) that will go into effect January 1, 2009. It is anticipated President Bush will sign the law soon.
Read all about the new ADA amendments on my blog post for IowaBiz.
The Midwest Small Business Conference is now set for October 10 & 11, 2008 at the Des Moines Marriott. This event is rescheduled from the previous announcement on this blog because the original date conflicted with the Iowa-Iowa State football game. (Conference organizers learned that not even business gets in the way of football). Fortunately the conference was able to pick up a new date and additional speakers.
I will be speaking on how to keep your business out of court.
Click here for a lineup of the conference speakers. We hope to see you there!
I am honored to be included among the Alltop franchising news selections. Some exciting things have been happening for me on the franchising front including developing the franchise disclosure document and franchise agreement for a new local franchisor, the opening of a client's new Max Muscle franchise location just on Thursday and the completion of a franchise litigation dispute.
I am also excited to attend the Forum on Franchising in Austin, Texas this October. Last year's seminar was one of the best I have attended. Given this year's lineup I am sure it will be equally as good.
Thanks to Joel Libava of Franchise King Blog for suggesting this blog for Alltop.
From the Small Business and Entrepreneurship Council I found this comparison of where Obama and McCain stand on the key issues of concern to U.S. small businesses.
I have not independently researched the comparison document myself but I have heard the candidates refer to many of their plans and it appears the SBE Council has tried to give a "no spin" look at the issues.
Here is a quick look at the Obama and McCain platforms regarding workplace issues.
Hat tip to Mark Toth and hisManpower Employment Blawg for the link.
I hope to follow this up with a "no spin" look at candidates' platforms on small business issues.
A recent article from the Wall St. Journal online discusses something I thought I would never see from a franchisor: A money back guarantee.
Others are not convinced and warn to investigate the details carefully in the Franchise Disclosure Document.
Thanks to Joel Libava for pointing out the article. Joel is a franchise consultant from Cleveland,Ohio that publishes an extraordinary amount of content regarding franchising. Both the good and the ugly. And never dispassionately. Be sure to check out his Web sites if you have an interest in franchising.
Twice a month I blog for IowaBiz which was acquired by the Des Moines Business Record this summer. Since that time it appears the bloggers have stepped up their game. The posts have been informative and entertaining. I encourage you to take a look.
My post today for IowaBiz centers on the trend of hiring outside law firms on a non-billable hour basis. It's a trend I embrace and use frequently in my law practice. Similar to the law firms mentioned in my post, I have already provided outside general counsel services to certain business clients based upon a mutually agreeable fixed monthly fee. These clients receive a fixed monthly bill and do not receive bills for phone calls and overhead costs such as copying and postage. I also have performed certain projects such as incorporation and LLC formation on a fixed rate and have also done so with contract review and writing. No, I have not completely eliminated the billable hour from my practice but would love to do so.
Great post from Susan Reid on the Small Business Trends Web site on the 15 Ways the Olympics 
Exemplify Success for Small Business Owners. In the comments of Reid's post, Anita Campbell has some terrific words about West Des Moines, Iowa's very own Shawn Johnson. Johnson definitely made us all proud with her amazing attitude and fantastic performance.
But I'll add one to Reid's list:
Be Honest. Although you may initially capture the gold it certainly won't be worth the consequences if you are caught being dishonest. It includes your dealings with the IRS, customers, suppliers, employees and business partners. The dishonest small business owner will likely get sued, or worse, end up being prosecuted. And with the Internet it is very hard to keep your reputation quiet.
photo of Shawn Johnson in butter at the Iowa State Fair on Flickr by Iowaarcheryboy.
I will be speaking at the Midwest Entrepreneur and Small Business Conference scheduled for September 12 & 13 at the Jordan Creek Marriott in West Des Moines.
I encourage you to check out the preliminary presenters' list for this first of its kind conference in our community. Hope you will consider attending.
The Wall Street Journal's 'Stories from Around the Web' featured my recent post on The Real Reason the Packers Traded Favre. It's the second time in the past few months that Rush on Business has been featured on the WSJ online site.
Another fun thing is my post on Favre was up on the computer at the Iowa State Fair in the Mediacom booth last Saturday. I didn't make it in butter but fun nonetheless.
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After reading a post from Ohio business lawyer Terri Rasmussen I wrote a post for IowaBiz asking whether Iowa will need a "business" court to compete?
In response I received an email from the Co-Chair of the ABA's Subcommittee on Business Courts, Lee Applebaum, who was kind enough to provide me more information on the recent developments in business and technology courts. At this point Iowa is not included in the states that have established business and technology courts.
Business people often express frustration with our court system but Iowa courts do rank high in polls when it comes to judical fairness. What you think? Should Iowa should establish or experiment with a business court?
photo on flickr by Greg Westfall
The Ohio Employer's Law Blog earns a gold medal with its Olympic-themed Blawg Review #172. Jon Hyman's review has some great blog posts from lawyers across the country, both in and outside of employment law. Be sure to read it.
Thanks to Jon for including my post on the real reason the Packers traded Brett Favre.
photo on flickr by Marc van der Chijs
"How could the Packers trade him?"
"What were the Packers thinking?"
"I just don't understand it?"
I am writing to shed some light on this decision. Favre turns 39 in October. That means next year Favre would have entered a protected class for the purposes of age discrimination when he turned 40. Sure, Favre may have had a decent season with the Packers this coming year (although he most assuredly will not for the Jets), but what about the following year? Seriously, how many years does this guy have left? Eventually he would have been benched in favor of a younger quarterback.
So Aaron Rodgers (age 24) steps into the role of starting quarterback now. Rodgers may be untested but it makes perfect sense. Trade Favre now and avoid the unpleasantness of an age discrimination claim by the all-time passing leader later.
So quit blaming the Packers' president or general manager for this fiasco. Everybody knows the lawyer is to blame.
photo on flickr by *Jame*
Washington employment lawyer Donald Heyrich details some recent huge verdicts against 
employers. The verdicts in his report range all the way up to a whopping $47 million.
Looking to avoid big verdicts? I say treat employees with RESPECT and keep in mind the Golden Rule of Employee Relations: Fairness. Unfortunately too many employers forget these basic rules.
It is critical to remember that in a jury trial your jurors are likely to be employees rather than employers. Being fair will not only reduce the employment claims against you but increase your chances of success if you are sued.
photo on flickr by benleto
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Many Iowa business owners think the new Iowa SmokeFree Air Act only applies to bars and restaurants. Not so!
Check out my post today on the Des Moines Business Record's IowaBiz site for more details.
The Register's Annual Great Bicycle Ride Across Iowa (RAGBRAI) begins today. Earlier this year my RAGBRAI inspired Blawg Review #147 received kind comments from my fellow legal bloggers and it was a little deviation from the typical posts you see on this site.
I am still taking a little break but new posts will return soon. Also be sure to check out the new and improved Iowa Biz site which is now sponsored by the Des Moines Business Record. I'll post twice on month for the Iowa Biz site. My next post on Iowa Biz appears Friday.
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This blogger is taking a break. New posts will return soon. In the meantime, thought some might like a recap of the most popular posts over the recent past:
Hope to get the Rush on Business Legal Wire, an interactive learning environment, up and running during August. Stay tuned for more details.
photo on flickr by wtlphotos.
Des Moines CPA Joe Kristan provides an important lesson on his Roth & Co. Tax Updates Blog in a post entitled, "It's Your Company. Is it Your Deduction?"
Joe recounts the story of an entrepreneur who incorporated a business but then spent over $47,000 in business expense out of his own pocket, which he then deducted on his schedule C. When the IRS called him on it the tax court told him that only the corporation can deduct corporate expenses. If the shareholder pays them and isn't reimbursed, the expenses are treated as a contribution to capital. That increases the shareholder's basis, but that doesn't help the shareholder's tax picture until the company is sold. That's true both for C corporations and S corporations.
Joe offers this lesson:
Mr. Meyer could have submitted his receipts to the company for reimbursement; the company would have been able to deduct the expenses. Or he could have had the corporation pay the expenses directly. But by paying the expenses out of his own checkbook and not turning them in for reimbursement, he lost his deductions altogether.
Another problem I see is the entrepreneur who wants to run all his business AND personal expenses through the business. For example, earlier this spring I witnessed a father buying his son's baseball equipment at a local sporting goods store. I chuckled when he pulled out a company check to pay for the equipment. Sure, one expense might get buried and never noticed in an audit but experience tells me that "pigs get fat while hogs get slaughtered." Many business people don't understand where to draw the line. Business expenses are fine to deduct. But running obvious personal expenses through the business just isn't acceptable. It could even be a reason to "pierce the corporate veil" in litigation causing you to lose your limited liability protection.
Liz Overton recently discussed the latest blow suffered by Wal-Mart on wage and hour claims over on the Iowa Law Blog.
I predict It's only a matter of time before wage and hour class action claims impact more mid-sized and smaller companies. It's the one area where plaintiff's attorneys are experiencing success.
Read also my previous post on how to avoid wage and hour lawsuits including some great comments from top notch attorneys like Dan Schwartz, Anthony Zaller and Bill Grell.
With the help of Doug Mitchell and Andy Brudtkuhl I will be going live with an Interactive Learning Environment to complement this blog very soon. The Rush on Business Legal Wire will focus primarily on employment law, franchise due diligence / investigation issues and business purchase or sale considerations. I also hope to attract top speakers to participate in the process. The online seminar presentations will include in-depth written materials, audio presentations, podcasts and possibly video.
Forums will also be available for you to share your insights and ask questions. Similar to the blog format, I won't be able to answer questions regarding specific situations but we can discuss topics generally.
I welcome your comments and suggestions on topics you would like to hear more about.
Don't forget that Iowa's smoking ban in public places starts July 1, 2008. If you are a business interested in learning more about compliance with the new law please visit the Iowa Department of Public Heath site at www.iowasmokefreeair.gov.
An informative Q & A concerning the smoking ban is available here.
Bar owners in particular are upset about the new law. Is a challenge in the works?
photo on flickr by greefus groinks
I was shocked and saddened to learn of the death of Des Moines entrepreneur Jim Goodman (46) who died during the Hy-Vee triathlon yesterday. He suffered a heart attack during the swim phase and although rescue workers pulled him from the water, Jim passed away at a local hospital.
Jim was the CEO of Emerging Growth Group and also led VentureNet Iowa. VentureNet Iowa is an organization dedicated to creating wealth and job creation through "orphan" technologies. It was through these ventures that I got to know Jim. He was an incredibly hard worker and cared deeply about the future success of entrepreneurs in Iowa. When I appeared on his Iowa Business Hour radio program last month I could never have imagined I would be one of his last guests.
As Brett Trout said on Twitter about Goodman, "He was a visionary leader and entrepreneur and his passing is a great loss for our city." But Jim's passing will also be felt throughout Iowa as no one I have seen was more committed to assisting rural entrepreneurs in our state gain access to capital and resources.
My heart goes out to Jim's wife and three daughters. Jim Goodman will be missed.
Nascar has been sued by a former technical inspector in the Nationwide series. The African-American woman seeks at least $225 million in her claims for sexual harassment, racial and gender discrimination and wrongful termination. In the lawsuit, she alleged she was referred to as "Nappy Headed Mo" and "Queen Sheba," by co-workers, was often told she worked on "colored people time," and was frightened by one official who routinely made references to the Ku Klux Klan. In addition, she claims male co-workers made sexual advances, two of whom allegedly exposed themselves to her, and graphic and lewd jokes.
If true, those claims are indeed strong evidence of harassment and discrimination. But what's worse is that her supervisor allegedly ignored her complaints and dismissed by saying that the guys were "former military guys" with a rough sense of humor and that she would just need to "deal with it". Now, Nascar must "deal" with a huge lawsuit. And in case they didn't notice, this predominately white and male sport is a fairly easy target in a case of this nature.
Nascar should have heeded several of my tips on how to avoid employment lawsuits. Th two that quickly come to mind are to treat all employees with respect and to take action promptly to investigate when complaints occur. If you are a supervisor in an organization where harassment or discrimination is suspected you had better not tell the employee to simply "deal with it". That's going to get you sued every time.
Brick Gentry P.C. is willing to aid lawyers that may have been displaced from their offices by flooding in Des Moines. We have a limited amount of office space and some conference room facilities we can make available.
If you are lawyer in Des Moines displaced by the flood and need some work space or a place to meet clients temporarily, please call me at 271-1744.
Throughout the country critics complain that courthouses are flooded with lawsuits. In Iowa our courthouses are flooded - literally.
Be sure to check out these AMAZING aerial photos of the flooding in Cedar Rapids, Iowa including the local courthouse. Cedar Rapids even has its own version of Alacatraz (better known as the Linn County Jail).
After 1993, I never dreamed I would see this kind of flooding in my lifetime. Many experts have said this is a 500 year flood. Unfortunately it's really just fifteen.
For more on Iowa's flooding please visit www.iowaflood.com.
In the film Evan Almighty everyone believes Evan has lost his mind when he begins building an ark next to his home to protect against an upcoming flood. Right now, in Iowa, no one would proclaim him crazy. Our recent flooding has once again wrecked havoc to homes and businesses throughout Iowa.
So how do you build an ark to protect yourself from continually rising employment lawsuits?
1. Treat Employees with Respect: Seems like a basic philosophy but it is amazing how many employers forget to treat their employees with respect. Employees that are humilated or treated in a disrespectful way are much more likely to sue your company.
2. Communicate with Your Employees: First, make sure you have an effective employee handbook with up-to-date employment policies and publicize your policies to employees. Make sure you follow your policies. One of the easiest ways to land in an employee lawsuit is the failure to follow your employment policies. Also make sure you have an open door policy where employees are allowed to voice their concerns or complaints. Do not let complaints fester. Deal with them right away.
3. Implement an Effective Unlawful Discrimination and Harassment Policy: Your harassment policy should include more than just sexual harassment. There may be other forms of harassment based upon race, religion, age or disability. It is also critical to consistently train employees and supervisors regarding unlawful harassment and discrimination. You should consider training employees on harassment and discrimination issues at least once every year.
4. Document, Document, Document: The importance of good record keeping cannot be overstated. If you don't have something in writing, chances are a jury or judge may not believe it happened. Be sure to document even verbal warnings and maintain an appropriate personnel file in order to make sure the documentation is not lost.
5. Conduct Honest Employee Evaluations on a Regular Basis: Unless your company is headquartered in Lake Wobegon every employee is probably not above average. Evaluations can be valuable proof in an employment lawsuit. Make sure poor performance is properly documented. Otherwise, the judge or jury will not believe you when you say the employee performed poorly but all their evaluations are excellent. You should conduct the evaluations on a regular basis, usually at least once per year. I recently represented a client sued for discrimination. A key in defending the case were the honest performance appraisals performed b management.
6. Do Not Retaliate: Employers are often blindsided by retaliation claims. There are a number of proactive measures you can take in order to avoid liability for retaliation claims. It is important to avoid retaliation because recent cases have lowered the burden for plaintiffs to prove their retaliation claims and the number of retaliation claims from plaintiffs is continually on the rise.
7. Take Action and Investigate Promptly: If a complaint arises, make sure you take the complaint seriously and investigate promptly. A quick and thorough investigation may help eliminate problems before you have a real mess. You will need to consider who should conduct the internal investigation.
8. Compy with Wage and Hour Laws: Ensure your exempt employees (i.e., salaried employees) are properly classified as exempt under the law. Wage and hour claims are also on the rise and could result in a class action against your company. This is a common area of the law that is ignored by many employers and could result in significant liability.
9. Review and update your employee handbook and/or policies: At least you should review your policies to incorporate any changes in the law or your manner of doing business.
These simple steps will go a long ways to reducing employee lawsuits. To ensure that your company has done everything it can to avoid employee lawsuits, you should have your employment policies, training and practices reviewed by your employment lawyer.
*This post originally appeared as the Seven Ways to Avoid Employee Lawsuits from January of 2007 but this updated version is worth repeating. It also includes some ideas from Anthony Zaller of the California Workforce Resource Blog who had commented on my original post.
Photo on flickr by Whisper Photograhy.
Glad to see my friend Mark Landa blogging over on the Iowa Law Blog. Mark has an important reminder that the time for filing a civil rights complaint under Iowa law will be extended from 180 days to 300 days in order to conform to the federal timeline.
Iowa employment lawyer Victoria Herring points out on her blog that it is not a good idea to push deadlines but the extended time frame will allow complainants (and employers) and additional time to work out a resolution or gather evidence for claims.
The new Iowa law goes into effect July 1, 2008.
This past January I posted on an Iowa immigration bill that targeted employers. The bill sparked significant debate but was not passed.
Now in the wake of the raid at the AgriProcessors slaughterhouse and packing plant in Postville, Iowa, Iowa's legislative leaders are renewing promises to target employers.
This time legislative leaders will introduce legislation to prevent employers from hiring immigrant workers as independent contractors when they should be considered employees. It is also anticipated the legislature will renew efforts to create sanctions on employers that knowingly hire undocumented workers.
I have written on the issues relating to employees and independent contractors on several occasions. The issue of whether a worker is an employee or independent contractor is one of the most misunderstood (or should I say ignored) areas of the law. The proposed legislation is likely to crack down on the use of illegal immigrants serving as independent contractors in the construction industry.
In my experience a significant percentage of workers in the construction and other industries are misclassified as independent contractors rather than employees, not just illegal immigrants. For most companies I would argue it's more about saving on payroll taxes and workers' compensation insurance than hiring undocumented illegal immigrants.
As I have said in the past, the approach of misclassifying workers as independent contractors is not worth the risk. The safest course is to treat workers as employees if the workers' status as an independent contractor could reasonably be questioned.
If you have questions about whether to treat workers as employees or independent contractors be sure to consult with an employment lawyer.
A new Iowa law blog has sprouted. Jim Nervig of the Brick Gentry law firm has started the Iowa Real Estate Lawyer Blog. Jim's just getting his feet wet at this point but he is off to a fine start.
Jim practices in the areas of real estate transactions, tax sale law, tax assessment appeals, zoning and other municipal law, corporation law and wills. He frequently speaks at seminars on real estate, tax sale and zoning topics. Jim previously served as City Solicitor for the City of Des Moines, Iowa. Jim's blog is intended to help readers stay current on issues relating primarily to real estate and tax sale law and procedures in Iowa. Particularly when it comes to tax sale law, there are few in this state with the knowledge and experience possessed by Jim.
I encourage you to add Jim's blog to your favorites if you are interested in real estate. It will be worth it.
Tonight I will be appearing on the Iowa Business Hour with Jim Goodman from 7:00-8:00 p.m. on 98.3 WOW-FM.
I follow a long line of distinguished guests on the program including the incomparable Brett Trout.
If you don't have anything else to do take a listen tonight.
My most recent post on Love Contracts received some link love from the Wall St. Journal and Law.com's Legal Blog Watch. It's nice to get a little recognition now and then from the heavyweights.
Be sure to check out employment lawyer Mark Toth's blog that was the source of my post. He has one of the most informative and creative employment law blogs around.
Mark Toth of the Manpower Employment Law Blog has an interesting post on "hooking up at work" and whether love contracts are a good idea. This is where co-workers sign a contract in order to protect the company and the employees involved against sexual harassment or other discrimination charges. Mark says he doesn't think the agreements are necessarily a good idea because it forces the company to become the love police and subordinates may claim that they were forced to sign such an agreements under duress when a superior is involved.
Other employment lawyers quoted in the Newsweek article featuring Mark believe the love contracts may be a good idea. However, I tend to agree with Mark. Sure certain office-romance relationships may start out consensual but it can quickly turn to harassment when one of the lovers calls it quits and the other won't give up the pursuit. I tend to believe that the changed circumstances and conduct that occurred after the relationship broke off still opens the company up to liability - love contract or no love contract.
Tomorrow's BIZ networking luncheon features Jonni Tonnemacher, a CPA specializing in fraud detection services. Learn how to identify fraud in your business and implement controls to prevent fraud from occurring.
I have not heard Jonni talk previously but the topic is fascinating. It is downright scary how much fraud occurs in business. Don't be a victim. Be informed.
Read more about the offerings of BIZ at www.bizci.org.
The vote on the new Polk County courthouse was soundly defeated last night. But the overcrowding, lack of security and safety issues still exist.
Unfortunately in these situations timing is everything. Like the good defense attorney that does not want a trial during the December holiday season, it is tough to imagine voters approving the plan a mere one week after the CIETEC trial and its guilty verdicts. Plus, the economy is in the tank and foreclosures are at record levels.
But here is my question:
What would need to occur in order to convince voters to vote "Yes" for this necessary expense in the near future?
I ask you to please consider "Yes" this coming Tuesday, April 29th for a new courthouse here in Polk County.
The case for a new courthouse is overwhelming. Even the opposition does not reasonably argue there isn't a need. Rather the opposition believes we should just put it off for tomorrow. The trouble with that reasoning is that we will need to lease space and then end up building a new courthouse down the road. That, my friends, will only cost us more.
It is time to have a courthouse that meets the needs of our county in the 21st Century.
Go to www.buildingforjustice.com for more information. Thank you for the consideration of your vote on this important issue.
The Dickinson Law Firm's Iowa Banking Law Blog ignores its disclaimer and provides some legal advice:
It's just another subprime market meltdown. One F-bomb is a mistake. Two might be forgiven. But 73? That's gonna get you sanctioned every time.
In Februrary I pointed out that women are starting businesses at a clip that is twice the rate of men. Now, turns out the Miss USA pageant winner is also an entrepreneur.
Frankly, I think it's pretty cool that the headlines about the winner, Crystle Stewart, read, "Texas entrepreneur named Miss USA". No surprise though. Models including Tyra Banks and Kathy Ireland are demonstrating they are much more than a pretty face in the business world. Ireland's business grosses over $1 billion per year and Banks has likewise demonstrated incredible business acumen.
In my own practice I am seeing more and more women who are becoming entrepreneurs. The one thing I have noticed about women entrepreneurs as opposed to the men is that they tend to research the business start-up process a little more carefully than men. Don't necessarily know why, it just seems to be the case.
The term "SEO" stands for search engine optimization and has been around for a decade. Heck, I've probably been familiar with the term for about nine years. I can't imagine that someone could trademark a term as generic as SEO but that appears to be happening.
Read Brett Trout's blog for this interesting development.
P.S. This just in, Brett Trout to trademark "IOU".
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The Des Moines Register had an article about how support has poured in for a Pizza Hut Delivery driver that was suspended from work after he shot an alleged armed robber. The employee had a valid handgun permit but a Pizza Hut human resources representative indicated that employees are not allowed to carry guns "because we (Pizza Hut) believe that is the safest for everybody."
I saw a clip where the delivery driver spoke with the TV media and he was obviously shaken by the incident. He said he appreciated the fact his employer had given him the time off without automatically taking action against him.
I know many readers on the Register blogs have been critical of Pizza Hut but they appear to be handling this difficult situation rather cautiously. They have not terminated the driver at this time but rather have suspended the employee pending an investigation.
Public opinion is definitely in favor of the driver. Even a state senator has publicly stated his position that the company would be wrong to fire the driver and vows to stop buying Pizza Hut products if the driver is fired. So this is a tough one for the company and there are no easy answers. I don't envy the employer's position on this one.
Ultimately I suspect the employer will enforce its policy but I will let you know as this unfolds.
photo on flickr by hashcakes.
Iowa's first legal blog has moved to its own url at www.blawgit.com and new posts will no longer be available at its former blogger site. Iowa patent attorney Brett Trout has achieved remarkable success with his blog. It is an award winning blog that provides tremendous information on patent, trademark and Internet law.
Brett is also the author of Cyber Law: A Legal Arsenal for Your Online Business. It's a great desk reference that I highly recommend.
Brett also occasionally (I guess often) demonstrates his unique sense of humor. This blog is a real treat and one of the best around so be sure to visit often.
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On April 29th, Polk County voters will decide whether we should fix the security and safety problems with the current courthouse and to build a facility that is large enough to meet the current demands of Polk County residents. Consider the following facts:
Overcrowding
Security
Safety
For more information please visit www.buildingforjustice.com. I encourage you to vote "Yes" for a new courthouse. If the facts described above do not persuade you, I implore you to go down to the courthouse and spend some time. Walk around. Make sure you go on a Monday morning. That will give you the best chance to observe the demands on our current courthouse. The need for a better facility is unquestionable.
photo on flickr by Turtlemoon.
Forbes Magazine ranks Des Moines as the fourth best metro nationally for business and careers. Iowa City ranked second in the smaller metro category.
Unfortunately for Iowa we also apparently rank first in the nation for corporate tax rates (and I don't mean in a good way).
But the tie breaker is that we are cool. We always got that going for us.
Des Moines attorney Charles Kenville has a great post on the need for lawyers to be mindful of the new media exposure in their cases. Chuck has a criminal law bent to his post but his reminder is just as true for civil cases.
I know from experience that savvy businesses are acutely aware of blogs and other social media in their trial preparation. In particular, Microsoft did a great job a staying in contact with Des Moines patent attorney Brett Trout and I when the Microsoft-Iowa litigation was going full steam. But the plaintiffs were not to be outdone. We routinely received updates from the plaintiffs' public relations team as well.
The bottom line is that lawyers engaging in trial law today ignore blogs and social media at their peril. Learn how to read RSS feeds to stay on top of pretrial publicity. You will be glad you did.
Today is my last day with the Sullivan & Ward law firm. This coming Monday I am taking a hop, skip and a jump over to the law firm of Brick Gentry, P.C. in West Des Moines, Iowa. This is actually almost literally true as the Brick Gentry law firm is located across the parking lot just to the west of my current office location.
It is difficult to leave my friends at the Sullivan & Ward firm but I am excited by this new opportunity. Brick Gentry is a growing law firm with an excellent reputation in the Des Moines legal community for over 40 years. The firm now consists of approximately twenty-five lawyers practicing in a wide range of areas including business law, municipal law, health care law, employment law, litigation and real estate.
I'll join the firm as a shareholder and continue to work with my current business law clients and litigation matters. Rush on Business will also continue although you will notice some changes to the links and contact information on the blog in the next couple of days.
My new contact information is:
Rush Nigut, Brick Gentry, P.C., 6701 Westown Parkway, Suite 100, West Des Moines, IA 50266. Phone: 515-274-1450; Fax: 515-274-1488; email: rush.nigut@brickgentrylaw.com
Thank you again to all of you that read this blog. I appreciate your support and look forward to this next step in the journey. Stay tuned for more because I have a few plans ahead to mix it up and enhance the blog. I'll need to settled in but I am looking forward to working on some new challenges very soon.
photo on flickr by phxpma
Des Moines Iowa intellectual property attorney Brett Trout is on a panel of experts to discuss the ethical risks of online communications. The program starts at 12:00 p.m. c.s.t. today and runs until 1:30 p.m.
See program outline information here.
I will be speaking on a panel today at the Central Iowa Certifiied Financial Planner (CFP) Luncheon on the impact of blogging in my career and whether other professionals should start their own blog. As I said before to the Sertoma Club, when I started this blog I never could have imagined all the great things that could have happened to me from a business perspective. Now here I am one year later from my last talk on this subject and it just keeps getting better and better.
One of my favorite quotes about blogging comes from Lexblog founder, Kevin O'Keefe:
"Act as if you have a magic wand when creating a blog. What type of work do you want to do? Who do you want to work with? What type of clients do you want to serve? And be careful what you wish for. Blogging can make it happen."
Thanks to the Central Iowa CFPs for the kind invitation to speak at their luncheon. I'll be on the panel today with financial planners Art Dinkin of Moment on Money and Suzanna De Baca of Private Capital Solutions Group.
As a blogger you may want to read this post from the Write Stuff on how to protect your online reputation.
The post discusses how several employees have been fired from their jobs for writing controversial blog posts including a Web designer that shared stories and opinions about co-workers on a personal blog, an airline attendant who posted photos of herself in an empty jet, and the former CNN reporter who published opinionated entries on his blog.
As pointed out:
In each instance, the blogger’s justifications and legal arguments may be compelling. But that doesn’t change the fact that they all have one thing in common: Termination from lucrative positions that permanently clouds their employment histories.
The post goes on to give some great reminders including
Above all, whether you are blogging on a personal or business blog, you must be cognizant of whether your words and actions could damage and/or embarass your employer. If so, you shouldn't be surprised when you receive your pink slip.
And also always remember the shortest corporate blogging policy: "Be professional".
As disclosed in the last post the new amended FTC rule concerning franchise disclosure documents requires franchisors to update their UFOC by no later than July 1, 2008. After July 1, 2008, franchisors must comply with the new FTC rule only. Currently, franchisors may comply with either the former rule or the new rule.
Here are some key differences between the former rule and the new rule:
There are other differences so be sure to talk with an attorney experienced in franchise matters if you are looking at purchasing a franchise.
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Jon simply has one of most informative employment law blogs around. Here are his highlights of the new regulations:
Except in emergency situations, employees will be required to follow the employer's policy for notification of FMLA leave, eliminating employees' ability under the old regulations to take up to 2 days after an absence begins to notify their employer that they intend to take FMLA leave. This change will greatly improve employers' ability to plan and schedule around employees' medical leaves.
Please note that I often find many small employers mistakenly believe they are subject to the FMLA regulations. Generally, the FMLA covers employers with 50 or more employees, and employees must have worked for the employer for 12 months and for 1,250 hours of service during the previous year to be eligible for FMLA leave. So be sure not to create a situation where you are responsible for FMLA leave if you are not required to do so.
As always, seek the advice of an employment lawyer in your particular situation.
My reign as the host of Blawg Review is coming to an end. But never fear, Brett is here!
Next week Mr. Trout keeps the Blawg Review right here in the great state of Iowa. I guess we will find out whether patent attorneys really do have all the fun.
As for me, I'll get back to some regular business law related posts next week.
Welcome to a RAGBRAI inspired Blawg Review. What is RAGBRAI? The Register's Annual Great Bicycle Ride Across Iowa is an annual seven-day ride across the state. Heading into its 36th year, RAGBRAI is the longest, largest and oldest touring bicycle ride in the world. It's not a race. It's an experience. And since Blawg Review is a carnival, nothing says carnival in an uniquely Iowa way like bicycles, spandex, pork chops, pie, frivolity and 10,000 of your closest friends!
The weather in Iowa is frigid this winter. As the weekend of this Blawg Review approaches Iowans brace for another heavy snow. Our friend Charlie Longbrief looks at the floor below his stationary bike and dreams of summer. A person can stand only so many YMCA spinning classes. He thinks back to his first RAGBRAI .jpg)
as a twenty year old when law school hadn't yet entered his mind and the biggest celebrity on the ride was Oakland Raiders great and Miller Lite spokeman Ben Davidson. Now it's nothing to see the likes of lawyer turned politician John Edwards or the bicycling legend himself, Lance Armstrong. Armstrong may have participated in the famous New York City Marathon but his heart will always belong with RAGBRAI. Listen for yourself:
Day 1: Missouri Valley to Harlan - 58 miles
This year's ride starts in the river town of Missouri Valley. While performing the traditional dip of his back tire in the Missouri River, Charlie sees Liz Overton of the Iowa Law Blog who warns him that because of the $350,000 settlement in a 2004 RAGBRAI death bicyclers better beware of the new proposed legislation from the Iowa State Association of Counties.
Unfazed Charlie gets on his bike and sets out on his adventure. But as he rides off he does ask himself whether Mad Kane is right. Is it wise to travel with friends particularly where tents are involved?
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About 15 miles down the road Charlie takes a break and starts getting an earful from New Yorker Eric Turkewitz about how State Farm has been hit with a RICO lawsuit over alleged sham medical exams. That hasn't been reported elsewhere and Charlie worries whether State Farm might be doing the same thing in Iowa. Charlie is so interested he and Eric ride the rest of the way to Harlan together. Although its only the first day Turkewitz remarks that he agrees with Lance Armstrong . . . RAGBRAI is a hell of lot more fun than his beloved New York City Marathon.
As he pulls into Harlan, Charlie finds himself a little short on cash and heads off to find an ATM. There he sees John Crenshaw who starts telling him about the biggest scams banks are pulling off everyday. Charlie just shakes his head in agreement as he pays the $2.00 charge to get the money out of the ATM. After a little angel hair pasta its time to hit the sleeping bag. There is a big week ahead and unfortunately Charlie isn't twenty any longer.
Day 2: Harlan to Jefferson - 83 miles
The next morning Charlie wakes up bright and early and sets off for Jefferson. He has some clients that are buying a business nearby and that reminds him he should heed Larry Staton Jr.'s advice to know what you are getting when you buy a trademark from an existing business.
About half way to Jefferson our city boy is a little mesmerized by the miles and miles of corn. It 
makes him wonder whether Farmer David will be able to pay that large patent judgment he now owes Monsanto as reported by the Patent Baristas.
In Scranton, just short of Jefferson, Charlie sees a big group of people gathered in a park off the town's main drag. There he sees Dan Slater of the WSJ Law Blog who explains that all the hoopla is because the M & M boys have turned their attention to the RAGBRAI water slides because the Naked Cowboy drove them outta of Dodge. The revelers love it and the log jam causes a very slow ride into Jefferson that evening.
Day 3: Jefferson to Ames - 56 miles
It's a big day for politicians on the way to Ames, home of Iowa State University. Barack Obama and John McCain are expected to make appearances today. Hillary Clinton is here too and keeps talking about how the Florida and Michigan delegates must count. Obama shrugs it off by saying even his six year old knows it wouldn't be fair to count votes where there was no campaign. But at least Florida has made significant strides in improving its jury system according to Juries. While Diane Levin points out voters can learn a lot from the field of negotiation. Eugene Volokh shares that John Mellencamp may be able to stop McCain from playing his songs after all.
All the political talk has people addressing serious issues on the road today. Riding on a three person tandum, Leon Gettler of 
Sox First tells Charlie that Sarbanes-Oxley not only failed to stop the subprime meltdown, it contributed by giving investors the false confidence that they could rely on the law, and not prudence to protect their market holdings. Scott Greenfield shares that Congress has a pending bill that may immunize banks from paying billions in dollars to a small Plano, Texas company. Patently-O adds that although DataTreasury is not directly mentioned in the bill it is pretty clear that Section 14 is directed primarily at the company.
As Charlie rides into Ames he sees Kevin O'Keefe and Holden Oliver of What About Clients engaged in a heated discussion about whether corporate clients really want a lawyer that blogs. O'Keefe says yes while Oliver says no. It then gets a little personal when O'Keefe accuses Oliver of being someone else. Charlie blames Teri Rasmussen who started the whole thing when she said every client should want a lawyer who blawgs.
Day 4: Ames to Tama-Toledo - 75 miles
Charlie gets ready to head off to Iowa's version of the twin cities today. In the pancake breakfast line he meets Connie Crosby who is kind enough to introduce him to David Bilinsky. David tells Charlie all about how there is a great need for law firms to turn their senior partners into business leaders. David Maister overhears them and chimes in that one-firm firms are often quite successful.
After an uneventful morning Charlie witnesses an accident on today's route where someone goes to the hospital. It looks like the rider will be okay but David Harlow of HealthBlawg warns that hospital-acquired infections are a real problem. Iowa estate lawyer Matt Gardner says that even if the rider makes it through he should still think about the disposition of his bodily remains.
As he enters Tama (or is it Toledo), John Phillips of the Word on Employment Law almost runs smack into a little beagle that darts in front of him. The incident causes John to conclude that beagles should no longer be excluded from the Animal Employment Protection Act (AEPA). John is obviously a little excited about the near miss and starts rambling about how he handled the situation a whole lot better than Roger Clemens handled the accusations from Brian McNamee.
Day 5: Tama-Toledo to North Liberty - 82 miles
Now that we have passed the mid-way point for this year's ride, everyone is a little loosey-goosey today. Charlie's cadence starts to pick up as the wind blows with the sweet smell of pork chops. That could only mean that Mr. Pork Chop is nearby. As he pulls off the roadside to visit our pork chop hero, Charlie sees that Iowa legal blogger extraordinaire Brett Trout and his band of Iowa legal bloggers are engaging Mr. Pork Chop in a battle of wills to determine who has the loudest pork chop call. Sadly, while Trout may be Iowa's toughest attorney he is no match for Mr. Pork Chop in this arena. Hear why:
After a pork chop and a short nap Charlie rides along to catch up with Michael Moore who 
discusses risk management in employee terminations and explains sometimes the "How" is as important as the "Why". Pretty soon both of them come across a big party along the roadside. A crowd is gathered around Dennis Kennedy who apparently is still celebrating his blawgiversary and birthday. During the party Tulane Law Professor Alan Childress wonders aloud whether any Iowa legal counselors had ever been in trouble like the lawyer that got into trouble with his state bar by trying to talk his way out of a ticket for deer hunting.
Still a little full from his banana cream pie, Charlie and his new friend Charles H. Green ride along at an easy pace discussing that as more and more banks and consumers walk away from loans--and contracts gone bad, we are reminded that legally binding contracts are often only as strong as the morality of those signing them.
That evening after dinner there is lots of entertainment in North Liberty. At a concert Cathy Gellis proclaims, "I need a husband!" The revelation causes Jon Hyman to explain what happens when office romances go bad. But Cynthia Shapiro, who received her RAGBRAI pass from George's Employment Blawg, says you might be able to have that office romance if you know a few secrets. When Jennifer Jaskolka-Brown overhears them she warns them that email has made it much easier to collect damaging evidence in divorce cases.
Day 6: North Liberty to Tipton - 62 miles
Charlie decides to join the Lance Armstrong peloton this morning for some fun. As you might expect with Armstrong the ride is a little faster paced today. There are several others brave enough to join the pack this morning:
Day 7: Tipton to LeClaire - 55 miles
The last day! On his ride to LeClaire, Charlie meets up with the anonymous Editor of Blawg Review to tell him the ride has been worth it. Together they dip their front tires into the Mississippi River where Charlie quips that normally what happens on RAGBRAI stays on RAGRBRAI, but this year what happens on RAGBRAI ends up on Blawg Review!
* Legal Disclaimer: This Blawg Review is a work of fiction. Names, characters, places, events and incidents either are the product of the author's imagination or are used fictitiously. Any resemblance to actual persons, living or dead, events or locales is entirely coincidental.
Blawg Review has information about next week’s host, and instructions how to get your blawg posts reviewed in upcoming issues. My dear friend and fellow Iowa legal blogger Brett Trout takes the helm next week. We wish him well as he tries to best the excellence of his previous effort on Blawg Review #106.
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Flickr Photo Credits: johnedwards2008, wade, blmurch, MNgilen, IaRuth, wade and artandscience
Next week I will be the host of Blawg Review. Blawg Review is a blog carnival for anyone interested in law. I encourage you to submit your posts or any recommendations for posts. Please follow these submission guidelines.
If you haven't already done so or are unfamilar with Blawg Review, be sure to take a look at this week's Blawg Review #146 from the Invent Blog.
I have already received some great submissions so I am looking forward to the fun.
Terri Rasmussen of the Ohio Practical Business Law Counsel blog says that every client should want a lawyer that blogs. As you might guess, I agree.
Why is it important, you ask? Terri shares her thoughts (with some comments by me):
Like Terri, I strive to have fun and help people through my blog and there is no question it has made me a much more effective lawyer. Blogging is an educational process. Not just for the reader but especially for the writer. Without blogging I would never get to learn from great lawyers like Terri.
It's always nice when people say great things about you but I am particularly humbled by a recent post from What About Clients? WAC? is one of the great blogs (and I do mean great as evidenced by their award as the Best All Business Blog for 2007 by the ABA). I respect Dan Hull and his gang for their absolute passion to delivering superior customer service. WAC? is really just an extension of that passion. As a young lawyer it was drilled into me that you do whatever it takes to serve clients and even a little bit more. It's apparent Dan Hull lives that motto every day - 24/7.
But now there is a little pressure for the Blawg Review on February 18th. Between WAC? and the comments from the wildly popular Iowa patent attorney Brett Trout I better not disappoint.
When our law firm started the Iowa Law Blog, I had high hopes despite the fact that I knew a firm-wide blog would not be easy. But I saw what Stark and Stark had created with their New Jersey Law Blog and knew it could be done.
I don't know if you have noticed lately but Sullivan & Ward's Iowa Law Blog really seems to be catching its stride. Three blogging faithfuls (Matt Gardner, Jennifer Jaskolka-Brown and Liz Overton) are creating a wealth of information in niche topics of Iowa law including weath and estate planning, family law and employment law. Here are some of their great posts this past week:
Plus we officially (finally) made the I list. Thanks to Chris Punke for that great widget. Now I just need to get it on the blog.
Super Tuesday is behind us and neither party has its nominee although John McCain may be very close to securing his party's nomination soon. So my question is which presidential candidate do you believe will best represent the interests of small business? According to a Small Business Television poll (SBTV.com), Barack Obama will best represent the interests of small business.
It would be fun to know what you think.
The Giants denied the Patriots a perfect season with an amazing 17-14 victory in tonight's Super Bowl. And as much as I enjoyed the game I couldn't believe my eyes when I read a headline that Senator Arlen Specter intends to meet with NFL Commissioner Roger Goodell and has indicated that the Patriots' spygate controversy could go to hearings.
Frankly, I've had it. Don't we have a little more serious problems to deal with like a struggling economy, a mortgage foreclosure crisis and wars in Iraq and Afganistan. Our government should stay out of the current NFL controversy and also major league baseball for that matter. But if they are bound and determined to investigate something perhaps I could go along with an investigation of professional soccer. After all, the money paid to David Beckham after playing a measly number of games is the single biggest atrocity I have seen in sports during my lifetime.
Andy Priestley of DWebware tagged me some time ago for the "Get to Know Your Author" meme. It has taken me a while to get to it but here we go.
The rules of “tag” are simple:
Seven random and/or wierd things about me:
So there you go. Seven things you may, or may not, have wanted to know about me. Now I want to hear from:
Back to business law on Monday with word on a big Iowa Supreme Court ruling that has a big impact on home builders.
Under a new Iowa immigration bill, employers that repeatedly employ illegal aliens would face civil penalties of up to $10,000 and up to a year in jail under legislation being proposed in the legislature. Employers would be exempt from penalties if they seek verification of a worker's citizenship status through the Department of Homeland Security's verification system. But many employers complain that system is dreadfully slow.
House File 2026 has sparked significant debate. Democrats claim it is a human rights issue. Republicans claim it is pure politics in an election year and intended to protect unions while harming non-unionized independent contractors. The Hispanic community in particular has great fears that jobs will no longer be available in Iowa under the new law.
This bill may have the biggest impact on Iowa businesses this legislative season. Read House File 2026 here.
I've said it before (and also here) but it bears repeating that wage and hour class actions are booming. Just this past week Iowa's Casey's General Stores was hit with a wage and hour lawsuit with allegedly more than $5 million at stake. If that isn't enough to convince you to examine whether your company has vulnerabilities you better read this informative blog post from Mark Toth of Manpower.
The 4th Annual Workplace Class Action report from Seyfarth Shaw shows the volume of wage and hour class action continues to grow exponentially. As the report's editor says, “identifying, addressing, and remediating class action vulnerabilities” should be at the top of every employer’s list of 2008 priorities.
Today I'll be pinch hitting for Brett Trout at the Des Moines Partnership's Biz Networking Luncheon. I will cover how to stop doing things online that will land you into court. The best part of this presentation is I get Brett's material. I hope to see you there today.
This event will be held in the Arthur Davis room at the Greater Des Moines Partnership on January 15th. The luncheon will begin at noon and will conclude at 1:30. The cost of the event is $10 for members and $12 for non-members. To RSVP for the event, please email Cathy Spenceri at caspenceri@dmacc.edu . We hope to see you there!
photo on flickr by jimcchou
This Wednesday morning (Jan. 16th) I will speak at the IowaBiz breakfast series on the How To Avoid Legal Surprises for Your Company. The presentation begins at 7:30 a.m. at the Professional Solutions Insurance Services' Building, 14001 University Avenue, Clive, Iowa.
Thanks to our hosts from Professional Solutions Insurance Services. So far, the series has been fantastic including talks from Drew McLellan, Shirley Poertner, Brian Honnold and Mitch Matthews.
I hope to see you there.
Roger Clemens has sued his former trainer for defamation in an attempt to regain his Hall of Fame reputation. The WSJ Law Blog has a great story on the lawsuit.
The interesting question will be whether the trainer will file a counterclaim for defamation. Why not? McNamee now has to protect his reputation and Clemens has the deeper pockets. At this point McNamee won't have anything to lose either. Public opinion for baseball players after the Mitchell Report is perhaps only a little higher than the public's views of lawyers.
See my thoughts on the Mitchell Report here.
Photo on flickr by dethtrip99
Iowa trial lawyer Joe Gunderson was featured this past week during the Iowa Caucus on the Wall Street Journal Law Blog. Joe had the following comments regarding what it's like to have Iowa in the national spotlight:
It’s fabulous because we get a rejuvenated civics lesson every four years. Our newspapers for the past few months have been filled with the political process and the issues of the day. The candidates get asked questions in Osceola about the Iraq war. In Orange City, they get asked about ethanol. In Fort Madison, they get asked about Social Security and Medicare. Just this morning, I was driving in downtown Des Moines and there were college students standing outside, underdressed in 10 degree weather, smiling and waving Obama signs. How could you be cynical about politics when you see that in the morning while driving to work.
It was kind of funny that the Law Blog expressed surprise Gunderson was a trial lawyer AND chaired President Bush's Iowa campaign. Only in Iowa, right? Republican trial lawyers and Democrat defense lawyers like Gordon Fischer. On the Iowa lawyer-advisor side, Joe mentioned Iowa lawyers Doug Gross (Romney) and Jerry Crawford (Clinton) in the story but apparently forgot about the younger Fischer and his advisor role on the Obama campaign. Gordon accurately projected the huge turnout, which no one expected other than Ann Selzer, and helped lead the Obama campaign to victory.
There's change happening here in Iowa too.
Iowans turned out in record numbers for the caucus! My precinct almost doubled the turnout from 2004. The energy was infectious and everyone could feel something special was happening.
Congratulations to the winning candidates but the real winners are Iowans.
Today is the day. The Iowa caucus is finally here. I saw this report fromYahoo that approximately 2.75 million Iowans won't caucus today. That means only approximately 10 percent (or less) of Iowans are expected to caucus. Let's hope we blow that figure away.
I was a little surprised when one of my friends told me he would not be participating in the caucus. He thinks his vote doesn't matter. Hogwash! When I hear things like that my blood boils.
Recent elections for President have demonstrated that every vote counts. If the electorate doesn't turn out we most assuredly get the government we deserve. Do yourself a favor and exercise your vote. By this November it may be too late.
P.S. I will get back to business law very soon but first things first.
Tomorrow is the Iowa caucus. As my friend Michael Libbie pointed out in a recent comment on this blog, we are so lucky here in Iowa. We get to meet the candidates, ask questions and receive hundreds and hundreds of phone calls. (Well, two out of three isn't bad).
Caucus locations and information for Democrats can be found at www.iowafirstcaucus.org.
Caucus locations and information for Republicans can be found here.
I encourage all Iowans to participate. If you are in Precinct 70 in Des Moines, I'll see you there.
The Iowa Caucus is this Thursday, January 3rd. The national media has descended upon us and at least one of my restaurant clients I talked with recently is extremely thankful. Yesterday, I featured the Democratic candidates and today it's the Republican candidates. Again, my intent is not to endorse any particular candidate but rather provide a little bit of commentary based upon my observations in the neighborhood.
Rudy Giuliani - battle tested and has demonstrated his leadership abilities after the terrorist attacks in New York City. Believes in low taxes and small government. His stance on abortion and gay rights is opposite the typical Republican. Personal life is messy. The fact he campaigned less in Iowa than other candidates will likely hurt his chances for a caucus victory. See video here.
Mike Huckabee - I first learned about him when he participated in the Little Rock marathon with Iowa's former Governor, Tom Vilsack. And he hasn't stopped running since. The time he has spent in Iowa has been worthwhile as he has thrust himself toward the top of the polls. His down home fits well with Iowa voters. His race with Mitt Romney has turned ugly at times but Huckabee has done more to help himself than any other candidate in Iowa. See video here.
John McCain - Des Moines Register endorsement was a big shot in the arm for a campaign that seemed on life support a few months ago. Iowa and McCain have never truly loved one another perhaps in part because his opposition against ethanol subsidies. (I doubt he liked our indoor rain forest either). McCain appeals to Independents and Democrats and could be a tough contender if he were actually to get the nomination. His experience and public service are second to none. See video here.
Ron Paul - Probably has the most vocal and ardent supporters of any candidate. He is not just in favor of smaller government - he is anti-government. One supporter I know has decided to caucus for the first time to support Ron Paul. Paul opposed the Iraq war from the start and wants to end the IRS. Has enjoyed an incredible fund raising effort over the Internet. See video here.
Mitt Romney - Earned front runner status in Iowa early. Incredibly successful in business and managed to turn around the Olympics. Recently has been dogged by changing positions on social issues. His speech on his religion did not seem to be particuarly helpful. Has spent a ton of time in Iowa and second place finish to Huckabee could spell trouble for his campaign. See video here.
Fred Thompson - entered race later than other contenders. Conservative and a former actor. (Sound like anyone else?) Believes in limited federal government, strong local government and low taxes. Just doesn't seem to have picked up steam in Iowa. See video here.
Yesterday I received five phone calls and four knocks at the door from several campaigns that are pulling out all the stops to win the Iowa caucus. With the caucus coming up this Thursday, January 3rd, I wanted to highlight all the major candidates with some video footage of speeches. Today I will feature the Democrats and tomorrow I will feature the Republicans. I have added a little bit of commentary on what I observe in my own neighborhood but I am not endorsing any particular candidate.
Joe Biden - Not considered by many to have a chance but has picked up some key endorsements in my neighborhood - including some republicans. His affinity for foreign affairs and experience are his biggest assets. View video here.
Hillary Clinton - Either you love her or you don't. Some in my neighborhood are concerned about her electability in a general election. If nominated, will it just drudge up the same old issues that haunted Bill Clinton's presidency? She has tremendous political skills and has some major political endorsements in Iowa. Leading national polls but Iowa is more of a struggle. Still running neck and neck with Edwards and Obama. View video here.
Chris Dodd - His daughter spent the last couple of months in my son's kindergarten class. An extremely personable and likeable guy. (I doubt Connecticut voters appreciated the move to Iowa but I admire someone that puts his family first). Long on experience (33 years in Washington) but short on momentum. Worked to enact Family and Medical Leave Act. A class act. View video here.
John Edwards - probably has the most momentum right now of any democratic candidate. Spoke to a huge crowd at East High School the other night. While the polls are extremely close he appears to be gaining and moved ahead in certain polls. Populist message appears to be resonating with Iowa voters. Needs a victory in Iowa to continue on. Those I talk with doubt that second place will be good enough this time. View video here.
Barack Obama - Has given two of the best speeches of any candidate during the entire campaign. His inspirational message of hope and change makes him a force to be reckoned with in the caucus. Position that he was against Iraq war from the beginning sets him a part from the other candidates. In a virtual tie with Edwards and Clinton for the lead. Very charismatic. View video here.
Bill Richardson - A substantial resume and a charming person. I am not hearing a lot about him. Vows to bring troops home now. A finish behind Biden or Dodd could spell doom for this campaign. View video here.
Tomorrow: The Republicans.
Mike Sansone and Drew McLellan have developed the I List - a list that showcases the power of blogs in Iowa. While Mike did a great job of compiling the list, some notable Iowa law blogs are missing from the list including Jennifer Jaskolka-Brown's family law blog, George Davision's Law Blog, Bill Grell of Huber Book & Cortese, The Yin Blog and our own Sullivan & Ward Iowa Law Blog.
Our law firm has continued to recognize the power of blogs and we now have as many active blogs as any other law firm in the state including Rush on Business, Jennifer's blog, and the Iowa Law Blog. On our Iowa law blog we have had six different lawyers who have posted on topics ranging from employment law to OSHA regulations. Matt Gardner also had his own Wealth and Estate Planning Blog but now has turned his efforts toward developing our law firm blog.
So here is my list with those law blogs added.
Adam Carroll
Andy Drish
Art Dinkin, CFP, CLU, ChFC
Association of Business & Industry
Babich, Goldman, Cashatt & Renzo
Barry Pace
BeatCanvas
Bill Grell
Blue Frog Arts
Brett Trout
Bridges Financial
Broom Wizards
C Wenger Group
Carpe Factum
Claire Celsi
Cloud Nine Diamonds
Compass Financial Services
Conference Calls Unlimited
ConverStations
Dave Dreeszen
Des Moines Families
Dickinson, Mackaman, Tyler & Hagen
DMWebLife
Do You Q?
Dr U Fantasy Football
DSM Buzz
Dwebware
Employer Ease
Eric Peterson
Focal Point Multimedia
George Davison
Gift Idea Help
Home Know-it-All
Insight Advertising & Marketing
Iowa Bed & Breakfast Association
Iowa Biz
J. Erik Potter
Jann Freed
Jennifer Jaskolka-Brown
Josh More
Kyle's Cove
Maiers Educational Services
McKee, Vorhees & Sease
McLellan Marketing Group
NCMIC Insurance
Purple Wren
Radio Iowa
REL Productions
Rental Metrics
Rita Perea Consulting
Roth & Company
RSM McGladrey
Ruby's Pub
Runners' Lounge
Rush Nigut
Ryan Rossinick
Simplifive
Snap! Creative Works
Studio 24 Design
Sullivan & Ward's Iowa Law Blog
Swing Station
The Members Group
The Mitchell Group
The Simple Dollar
The Yin Blog
Transition Capital Management
US Rodeo Supply
Victoria Herring
Wade Den Hartog
Wealth With Mortgage
When Words Matter
White Rabbit Group
So don't just copy this list. Add to it. I am sure there are more hard working Iowa bloggers that deserve recognition and credit. Let me know of any you would like to add.
The Iowa Caucus is approaching quickly. If you attend campaign rallies for the candidates or listen to TV ads you will almost never hear anything about small business.
But in reality, America's small businesses are the driver of our economy. Consider these facts from the Small Business Administration (SBA) as outlined in February 2006:
10. Small businesses make up 99.7 percent of all United States employers.
9. Small businesses create more than 50 percent of the American nonfarm private gross domestic product (GDP).
8. Small patenting firms produce 13 to 14 times more patents per employee than large patenting firms.
7. The more than 24 million small businesses in the United States are located in every community and neighborhood.
6. Small businesses employ 50.1 percent of the United States’s non-farm private sector workers.
5. Home-based businesses account for 53 percent of all small businesses.
4. Small businesses are 97 percent of America’s exporters and produce 26 percent of all export value.
3. United States saw an estimated 580,865 new small firms with employees start-up in the last year measured.
2. There are approximately 4,115,900 minority-owned businesses and 6,492,795 women-owned businesses in the United States, and almost all of them are small businesses.
1. The latest figures show that small business creates 65 percent or more of America’s net new jobs.
I encourage you to find out where the candidates stand on America's small business issues. It's an issue vital to our economy. You are unlikely to find an express position regarding small business on any of the major candidates' Web sites, so you will need to ask them. Seriously, can anyone tell me where their candidates stands on SPECIFIC small business issues?
A Des Moines Register article discusses how many bosses are unwilling to allow night shift workers to caucus. Understandably this makes politically active employees a little upset. The article quotes a Medicom employee who said,
"It made me so furious. I raised such a fit I'm surprised they didn't send me home."
It's true that Iowa law does not require employers to give employees time off so they can caucus. But as I have pointed out before it is my view that treating employees with respect is one of the best ways to avoid employee lawsuits. An employer should ask themselves whether a few hours away from work every four years would really hurt production? But think of the goodwill that could occur by respecting the employees' desire to participate in the political process. Do you think you might have more committed and loyal employees?
At least the Des Moines Police Department gets it because police officers working on the night shift will have the opportunity to caucus provided they have made the request in advance and calls for service allow them to do it.
Update: The Des Moines Register reported in its Sunday edition that the Medicom worker described above will now be allowed to participate in the caucus.
An Iowa man who worked with Catfish Bend Casinos in Burlington was fired for posting a Dilbert 
cartoon on the office bulletin board. Apparently the boss didn't appreciate the comparison to a drunken lemur.
Dilbert creater, Scott Adams, offers this advice:
If you intend to mock your boss with Dilbert comics, the trick is in knowing which comics to pick. Apparently there is a fine line between posting a comic that criticizes a particular policy decision, versus a comic that calls your boss an inebriated prosimian. (Thank you, Wikipedia.)
It's important to remember that humor is in the eye of the beholder. If humor is used too much or at the wrong time in the workplace bad things can happen. A hostile work environment occurs when jokes, suggestive remarks, pictures, cartoons, or sexually, discriminatory or otherwise derogatory comments alter the circumstances of the workplace.
On the other hand, humor in the workplace is important to job satisfaction. I really can't imagine working in a place without some humor here and there. But at the very least it's best to still maintain professionalism and have a good sense of how people will react to your humor. Calling your boss a drunken lemur? Even Adams agrees that one was a little more cutting than the typical Dilbert strip. In an interview with the Register reporter he said, "I can see how this one may have been a tad bit over the line."
Abe Lincoln, Freedom Fighter (1978)
Abe: I don't know about this politician business.
Judge: What do you mean by that?
Abe: If I have to sacrifice my integrity for politics, I guess I'll just have to stay a lawyer!
Up to this point I have avoided blogging on politics and the Iowa caucus. It's a no win situation for 
me. I have clients on both sides of the aisle and a policy not to debate politics with clients has served me well. Besides, Iowa lawyers like Gordon Fischer and Ted Sporer do a tremendous job of covering politics with their blogs so I'll leave the debate to the experts.
But one campaign strategy surprised me. Many of the candidates are lawyers. But as Joe Kristan recently pointed out, lawyers are not exactly the apple of the public's eye. It's probably part of the reason why lawyer candidates tend to rarely emphasize their legal careers. But one candidate has decided to go against the grain. Trial lawyer extraordinaire John Edwards is campaigning in Iowa today with his most famous client.
As detailed in his book, Four Trials, Edwards obtained a $25 million judgment on behalf of Valerie Lakey and her parents. Valerie nearly lost her life when she was disemboweled by a swimming pool drain that was incorrectly attached. He has sent out mailings featuring the Lakeys and is now campaigning with them. He also unabashedly points to his career as a trial lawyer as an example of how he will stand up and fight against corporate and special interests. It's a bold but risky move given the public opinion of trial lawyers in particular. But I am proud of Edwards for not shying away from his tremendous career as a lawyer.
While the image of lawyers could be improved, it should start with lawyers being proud of the profession they have chosen. We offer society a valuable and important service. My thanks goes to lawyers like Edwards who aren't afraid to talk about it.
Photo on flickr by alexdecarvalho
There is a nice article in the Business Record by Amanda Ripp this week about the Central Iowa Blogga Nostra gaining momentum and growing in popularity. I am continually impressed with the quality of individuals and business people who are blogging in Central Iowa. The article features several quotes from members of the Blogga Nostra extolling the benefits of business blogging:
Mike Sansone (Blogging and social media coach): "The reach (of blogging) extends beyond borders; it brings money and business into Iowa." "In the old days, it took a phone book and a chamber of commerce to extend your business to another city," Sansone said. Blogga Nostra members are extending their businesses through more high-tech means with their blogs.
Angela Maiers (Independent education consultant): "I have seen a difference, not just with blogging, but being on the Web," Maiers said. "It has helped me to build connections with businesses and other educators, and helped me to prepare students for the 21st century. There are powerful people with powerful ideas outside of the classroom and I have made those connections through blogging."
Timothy Johnson (Chief Accomplishment Officer of Carpe Factum and professor at Drake University): Timothy met his favorite author, Steve Faber, through blogging. "A couple of months after I began blogging, I got an e-mail from Steve, out of the blue, complimenting me on my writing," Johnson said. After making the connection, Faber spoke to one of Johnson's classes.
Mike Wagner (branding consultant): "When there are possible business opportunities, you are able to sustain those relationships," Wagner said. "You have a shot to do business with people. Typically you hand a business card to someone and they throw it away. Give them a brochure, maybe they read it and then they throw it away. With blogging you can keep up the conversation. You keep business growing and react to consumers through an interactive piece."
Brett Trout (Iowa patent and intellectual property attorney): If a blog is linked to a more popular or higher-traffic blog, it will be easier for search engines to find the site, increasing the blogger's popularity, Trout said, "This is huge to Google."
Andy Brudtkuhl (Web developer with Simplifive): "The diversity of the group makes for different readership; it allows us to cross audiences," said Brudtkuhl,
and even this Iowa business attorney: "You link out to other people, or mention them on a post; it is a reciprocal effect," . "They write about you, and then someone else writes about that [post]. That's how it grows." "The cost is minimal, Bloggers can spend anywhere from nothing to a couple hundred dollars per month. Web sites can cost thousands of dollars to maintain."
So what are you waiting for? Join us at the Panera U in West Des Moines the first Friday of every month. It's a great opportunity to meet new friends and gain business contacts.
P.S. Thanks to fellow Central Iowa Blogger, Doug Mitchell, for lunch today. Doug is a perfect example of someone that has gained contacts through the Central Iowa blogging community and is now using those contacts to build a business.
The New York Knicks sexual harassment case provides some great lessons on employment law. Previously I touched on the Knicks case in explaining how companies could avoid sexual harassment claims. Now the case has been settled and there are additional lessons to learn.
Frank Steinberg of the New Jersey Employment Law Blog explains the importance of "fee-shifting" in employment law discrimination cases. In these cases the loser pays the attorneys' fees of the other side. This places a great deal of pressure on the defendants to consider settlement. As Frank said,
It is quite possible that, depending on the cases, the fees could be greater than the damages awarded to the plaintiff. Thus, a realistic evaluation of the likelihood of complete success should always be a part of the defense strategy and should be evaluated on a continuing basis.
You should always consider business strategies for litigation. I encourage you to approach litigation dispassionately and consider the best business approach to ending your dispute. Sometimes the best business approach means litigation is necessary but only after you have carefully evaluated all aspects of your case to determine how to prevail, or at the very least, extract yourself from the litigation under the most favorable settlement terms.
Or, if you got your brains beat in like the Knicks did settlement is never a bad option.
There's no business like show business, but there are several businesses like accounting. David Letterman.
Joe Kristan shows he is really in the holiday spirit over on the Roth & Company Tax Update blog when he followed up on tax professor James Maule's post that every profession has its good and bad. I know a lot of people don't like lawyers but weasels AND black widow spiders?
Of course Joe proves there is no accounting for taste.
The Mitchell Report was released on December 13, 2007. For baseball, it's just another black mark on an era now known as the "Steriod Era".
But what was accomplished by the report? Did we really need the report to determine steriod use was (and apparently still is) widespread in major league baseball?
The report outed many of the big names in the sport but the reality is much of the report would not hold up in a court of law. Many of the allegations are based upon hearsay and shaky evidence. Besides it's incomplete. Those mentioned weren't the only ones who allegedly took performance enhancing drugs in major league baseball. Is it fair to name names under these circumstances?
I find the hypocrisy in all of this amazing. MLB glorified the pursuit of the single season home run mark and fans returned in droves to stadiums across the country. (Recall that baseball was practically dead before Sosa and McGwire did their magic due to the strike in 1994-95). Selig apparently called the Mitchell report "a call to action". Sorry Commissioner, but the call to action rang a few years ago.
I also find it particularly interesting that Rafael Palmeiro testified under oath before Congress that he did not take steriods - shortly before he tested positive for steroid use. Was he prosecuted? No. In fact, the President of the United States (and former Texas Rangers owner while Palmeiro played there) supported his friend 100 percent. Bush reaffirmed his belief that Palmeiro did not take steriods even after a positive test!
Barry Bonds? Indicted despite no positive tests.
Mitchell says everyone should concentrate on his recommendations rather than focus on the names. Unfortunately he knows that is not possible and it is disingenuous to indicate otherwise. And if he truly recommends a full pardon for all included in the report why name names. Ultimately I think the Mitchell report just excentuates major league baseball's mishandling of this whole situation. This report just hurts baseball. And I know others agree.
MLB should keep in mind this quote from Yogi Berra, "If the fans don't come to the ball park, you can't stop them." The fans deserve better than this report offers. Stop with the mud slinging and solve the problem. The report wasn't necessary in the process. We all know the problem. It's up to the commissioner and the players' union to do something about it.
photo on flickr by jason michael.
I am attending the Iowa State Bar Association's eCommerce seminar tomorrow. The man formerly known as the sixth best law blogger in the world is one of the presenters. I am looking forward to Brett's talk as he shares his Vegas Blogworld speech with the audience.
It got me thinking a little bit about how to improve presentations. Recently I have been to a rash of presentations where the speakers throw up their power point and then talk directly to the screen rather than the audience. It's unbelievably annoying. It's death by power point.
The best presenters I know are terrific storytellers. The best speech I have heard over the past year came from Charlie Anderson who delivered a terrific story about his company at a SEMEE event earlier this year. He was the only presenter that evening who talked without a power point. His passion was evident. No slides were necessary.
For great advice on making the right presentation be sure to check out how I made my presentations little better. This comment about slides from the post is particularly insightful:
Let the slide serve your message, rather than letting you (and your personality and timing) be governed by the slide.
Thanks to Matthew Homann's [non]billable hour for the link to the presentation post.
Iowa accountant Joe Kristan of Roth and Company shares some year-end tax planning ideas over on IowaBiz.com.
It's a good idea to visit your accountant now (if you haven't already) to determine if there is anything you can do to improve your position come April.
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The Rooftop Foundation is holding its annual shopping tour for the kids at the Moulton Elementary School this Saturday. The Rooftop Foundation is a 501(c)(3) non-profit organization created by Ken and Esta Deever of Deever Roofing.
Every year the Deevers (and 60 volunteers) load up two bus loads of children and arrange to take the children shopping for their families. The children are not permitted to buy gifts for themselves as we try to teach the philosophy "it is better to give than receive". Along the way we manage to stop at McDonald's for breakfast and the children also receive a surprise gift bag of their own after wrapping gifts for their families.
In addition to the elementary children, our Santa has made it a priority to help spread Christmas cheer at the Young Women's Resource Center and to children in cancer treatment at Blank Children's Hospital in Des Moines.
It is an honor and a privilege to be a part of such a great organization. One hundred percent of all donations go to benefit the children. I am also excited because we have a new Web site coming very soon by Sandy Renshaw of Purple Wren.
Happy holidays!
Looking back on the first year of work at the Business Innovation Zone (BIZ), I have met with over 60 potential clients ranging across a wide variety of business areas. I have learned much on this path. First and foremost, I have learned to never prejudge an idea. I must say that some of the most "unique" sounding ideas described in an initial phone call or meeting have turned out to have the most merit. The entrepreneurs in this area have a tremendous amount of creativity and several have identified truly unique market niches that have not been exploited to date. Along with those great ideas, I have met with many whose ideas I found lacking. Asking hard questions has become a well worn path for me. In many cases the idea has not been thought through from a business perspective. The euphoria of the "perfect product" has overshadowed the realities of a profitable venture. I often find myself asking potential clients questions about the running of their prospective business. For many, it is a rude awakening as they come to understand the immense hardship and stress that will come with starting a venture.
I am often asked what advice I have for would-be or current entrepreneurs. Here are my thoughts for those starting out:
From Rush: BIZ is a community sponsored non-profit business accelerator designed to provide economic growth in Central Iowa through the development and expansion of entrepreneurial enterprise. Particularly if you have a business in Central Iowa that is poised to grow regionally, nationally or globally, I encourage you to contact Mike.
photo on flickr by aloshbennett
In the last blog post I picked on college football coaches and their exorborant salaries. But its probably not fair to pick on college coaches alone.
The Philadelphia Litigation Blog discusses how lawyers at large Manhattan firms are now charging $1,000 per hour or more. Superstar litigator, David Boies, sums it up pretty well:
Frankly, it's a little hard to think about anyone who doesn't save lives being worth this much money . . .
All of this reminded me of a great story from John Ward the managing shareholder of our firm. Sullivan & Ward has represented many of the rural electric cooperatives in Iowa for decades. At some point many years ago a decision was made to raise hourly rates to $50.00 per hour. When John discussed this rate increase with a client one of the board members proclaimed:
Ain't no man alive worth $50.00 per hour!
And while I don't advocate returning to the days of charging $50.00 per hour, I agree with the discussion on the Philadelphia Litigation Blog regarding flat fees in a case or deal. In many instances billing in this manner promotes greater efficiency than billing by the hour. In late 2006 I decided I would start charging on a flat fee basis for litigation in addition to my work for incorporating businesses, forming LLCs or monthly outside general counsel services. I have not moved exclusively to flat fees. I find some clients still prefer the billable hour but I am always open to alternative billing arrangements.
I know others agree with moving away from the billable hour including lawyer and author Scott Turow who believes the billable hour must die. For me I like flat fees and alternative billing arrangement for two reasons:
One couldn't help but notice the carnage at the end of college football's regular season. Coaches everywhere were fired or forced out. Some of those coaches even had winning records. Even the coach at my Division III alma mater didn't survive the past few seasons of mediocrity.
Are college football fans just nuts or have these coaches created the monster of expectations by earning as much as $5 million dollars per year? With that kind of money "It's just win, baby" and that means nothing short of championships and New Year's Day bowls.
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But then a revelation. The Supreme Court of Pennsylvania ruled that Joe Paterno's salary must be revealed to the public for the first time. Speculation had put his salary at more than $1 million a year (which would have still been a deal in the present coaching market). Paterno has been the head coach at Penn State for 42 years. That tenure includes national championships, numerous top ten seasons and has made him one of the winningest coaches ever in Division I college football history.
So his salary? Drumroll please . . . $512,664.
Still a substantial sum of money but nothing approaching the dizzying sums of money that several other college coaches make including Iowa's very own Kirk Ferentz.
Is there a lesson somewhere here?
photo of Paterno statute on flickr by audreyjm529
Rick Georges of Futurelawyer shares a little Thanksgiving humor with his Top Ten Reasons There Weren't Any Lawyers on the Mayflower.
Thanks for reading this blog. I appreciate it. I wish you a happy Thanksgiving and a wonderful holiday season.
I read an interesting report regarding the Yankees' negotiations with Alex Rodriguez. Apparently the Oracle of Omaha provided some advice that Rodriguez should contact the Yankees without his super agent Scott Boras. With the assistance of two Goldman Sachs executives Rodriguez negotiated his $275 million, 10 year deal with the Yankees.
It was a tough week for Boras as Detroit pitcher Kenny Rogers also gave him the boot.
Is Boras a victim of his own success? The contracts he has negotiated have been out of this world. But the owners can't stand him and apparently the big money earned by his clients can't buy love either. Rodriguez likely would have earned more on the free agent market but he wanted to remain a Yankee. Boras must not have been listening. Buffett did.
I wonder if Buffett will help LeBron James on his next big deal. Or better yet, I wonder if he provides investment advice to law bloggers?
Recently I posted about how the identity of anonymous bloggers may be revealed in situations where the anonymous blogger has engaged in defamation.
My friend, Michael Libbie, thinks its wrong to duck responsibility in publishing. I could not agree more. As I stated in my previous post:
If you are a modern day Lone Ranger or Zorro, you should not have the expectation that your anonymity gives you the right to say anything you wish about other people and organizations.
However, last night I came across a new political blog here in Metro Des Moines called intothevortex.net. I thought the blog posts were well-written and insightful. Not knowing the author I checked the About Section of the blog and found the following explanation:
We are a multitude speaking as one through a single pseudonym. We must because too often personalities interfere with the real issues and serious debate. We refer to The Federalist Papers in support of the value of anonymity. We care about our community, our schools, who leads us and how they spend our tax dollars. We believe in the future, good government and the Boston Red Sox.
While I hate the Red Sox (but ironically love the Celtics), it is true that the tradition of anonymous speech is older than the United States. Founders Alexander Hamilton, James Madison, and John Jay wrote the Federalist Papers under the pseudonym "Publius," and "the Federal Farmer". The U.S. Supreme Court has repeatedly recognized rights to speak anonymously derived from the First Amendment. The Electronic Frontier Foundation quotes the decision in McIntyre v. Ohio Elections Commission which reads:
Protections for anonymous speech are vital to democratic discourse. Allowing dissenters to shield their identities frees them to express critical, minority views . . . Anonymity is a shield from the tyranny of the majority. . . . It thus exemplifies the purpose behind the Bill of Rights, and of the First Amendment in particular: to protect unpopular individuals from retaliation . . . at the hand of an intolerant society.
That is a very strong argument in favor of anonymity, particularly on the Internet. But while I agree with the principles of our Founders, unfortunately anonymity is taken too far in many instances. For example, The Des Moines Register blogs are rife with people who will say anything when they are not required to accept responsibility for their words.
Does this mean I disagree with the right to maintain an anonymous blog? Well, one of the reasons I started blogging was because of the Anonymous Lawyer Blog later revealed to have been written by Jeremy Blachman. His blog helped me understand the power of blogs and the Internet for lawyers. An anonymous blog - done responsibly.
In the end, whether anonymous or not, let's all remember to blog responsibly. Please.
The Rush on Business show is going on the road this next week. On Monday, November 5, I'll be speaking in an Entrepreneur Workshop at Iowa State University. The Human Computer Interaction (HCI) Graduate Program at ISU received funding to teach the Entrepreneurship Workshop, which is a one-credit, hands-on workshop for students interested in entrepreneurial activities with particular emphasis on commercializing a technology and/or starting a company.
My talk will focus on Avoiding the Top Ten Legal Surprises that Wreak Havoc in New Tech Companies.
The report noted that the Iowa State University Research Foundation executed 218 licenses in the year ending June 30, 2005. That was second in the country behind the University of California system.
"This is a tremendous accomplishment considering the University of California system has about $3 billion in research expenditures compared to ISU's $210 million," the case study said.
The study also noted Iowa State's total of 745 active licenses ranks sixth in the country. And the five start-up companies Iowa State launched in fiscal year 2005 ranked 22nd nationally.
Over on the Iowa Law Blog I discussed the fact that the number of lawsuits is down this past year for U.S. businesses. The statistics are based upon a study from the international law firm of Fulbright & Jaworski. But you need to read a little deeper to find a more intriguing statistic:
The survey showed that companies based in the Midwest settled more often than those in other parts of the country.
One surprising statistic is that smaller companies were actually less willing to settle their cases than mid-cap or billion dollar firms.
But no surprise that Midwest companies are more willing to settle. My experiences have been that most Midwest lawyers, particularly here in Iowa, will work hard to get cases resolved. Perhaps that is another reason why Iowa is not considered a litigious state.
West Des Moines financial planner Art Dinkin's story shows that identity theft can happen to anybody. Be sure to read the comments for some helpful hints in what to do if identity theft strikes you.
Read my previous post if you are interested in Tips to Protect Your Business and Customers from Identity Theft.
It took us awhile but Sullivan & Ward's Iowa Law Blog is now live. It was designed with the able assistance of LexBlog. (The same company that designed and maintains this blog).
While Rush on Business tends to focus only on issues impacting Iowa businesses, we are taking a broader approach with the Iowa Law Blog to cover many different aspects of Iowa law. I know many believe that a law blog (or any blog for that matter) should cover a niche topic. However, I believe that a broader blog is better than no blog and it is frankly tough for a law firm of our size to have eight different niche blogs. Besides the New Jersey Law Blog is a prime example of how a state law blog can achieve remarkable blogging success.
The Iowa Law Blog will focus on several legal areas including:
Similar to what Stark and Stark has done in New Jersey, we hope to keep businesses and individuals updated on legal and legislative developments in the Hawkeye State. (Yes, you read that correctly despite the lack of wins and no offense).
We hope you find valuable information on the Iowa Law Blog and look forward to your comments.
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In this month's ABA Journal there is a story on 50 Ways to Market Your Practice. I read it once. Then again. And just to be sure I read it one more time - this time a little more carefully.
But sure enough blogging was not included in the Top 50 Tips to market your law practice. Honestly after reading the article I almost felt like Marty McFly in Back to the Future. Take Tip #46:
46. Write an e-mail newsletter about your practice area and send it to other lawyers. Archive the newsletters online.
Sadly, that was the closest that we came to the concept of a blog.
Now don't get me wrong, many of the ideas are terrific. In fact, I follow many of the tips outlined. But so many of the Top 50 Tips are enhanced by blogging. For example Tip #5:
5. Offer to write an article for your local paper on a topic such as why everyone should have a will or questions to ask a contractor. Make sure the byline includes the name of your firm and, if possible, your e-mail address.
Sure, that might work. But since I started blogging the media has actually reached out to me and begun to quote my material or asked me to provide quotes for their articles. I know other blogging lawyers have had the same experiences. It is amazing how blogging can enable you to take incredible leaps and become recognized as an expert with local AND national media.
Now blogging is probably not for every lawyer. It takes time and commitment. But I have found nothing - including all of the Top 50 Tips published in the ABA article - that has made a bigger impact on my ability to generate new business. Let's add blogging as Tip #51. What do you say?
Photo on flickr by genesis3000.
The Central Iowa Blogga Nostra gathers this Friday morning (Oct. 5) at the Panera on University in West Des Moines. I encourage you to come join us. What a diverse and interesting group! It is absolutely amazing how this group has supported one another. Collectively we have achieved much more than we could have on our own. We have marketers, blog coaches, consultants, small business owners, financial gurus, accountants, tech geeks, growth capitalists, executive coaches and . . . even lawyers.
Some of my favorite posts over the past week from fellow Central Iowa Bloggers:
Taking Responsibility by Michael Libbie of Insight Advertising. Michael follows-up on my blog post about the disclosure of anonymous bloggers. Michael is a big believer that responsible blogging means you should not be able to hide behind your anonymity and say any darn thing you want.
Now THIS is an Elevator Speech by Timothy Johnson of Carpe Factum. Too funny!
Lessons Learned from a Game of Tag by Central Iowa Financial Planner Art Dinken of Moment on Money. As Art says,
An experienced professional, in any field, is not just someone who knows what to do. Equally important are the lessons they have learned from past experiences which have taught them when NOT to do.
Also, congratulations to Tom Green and Amy Hunold-VanGundy on the launch of their Runners Lounge Web site. This running community site is pretty cool and already has a great following thanks to their blog started this past May.
Shanti Atkins of the Compliance Training Blog has an interesting blog post about the crippling trend of wage and hour litigation. The post references a recent BusinessWeek article discussing how plaintiffs' employment lawyers are "printing" money with wage and hour cases. One of the plaintiff's lawyers is quoted as saying,
"I can hit a company with a hundred sexual harassment lawsuits, and it will not inflict anywhere near the damage that [a wage and hour suit] will."
In my experience, wage and hour issues are often misunderstood by employers. Employers tend to run into problems when they ignore overtime regulations. If you have questions I suggest checking out this handy reference guide to the Fair Labor Standards Act (FLSA) and consulting your employment lawyer. You might also consider a wage and hour review to avoid misclassification of employees.
Bloggers who hide their real identities may want to pay particular attention to a recent case. A Texas judge has ordered the discovery of an anonymous blogger who posted alleged defamatory comments about a hospital located in Paris, Texas. The ruling is likely to be appealed.
Anonymous users also posted comments on the blog which the hospital claims is confidential patient information. The hospital claims that some of the commenters and perhaps the blog operator are current or former employees and the disclosure of such information violates HIPAA.
The Citizen Media Law Project does a nice job of framing the legal issue:
The primary question in cases seeking to uncover the identity of an anonymous defendant is how to balance the defendant's First Amendment protected interest in engaging in anonymous speech against the plaintiff's interest in pursuing a valid cause of action for the effects of nonprotected speech.
The post goes on to discuss the various standards used in determining whether an anonymous blogger's identify should be revealed. Right now, this issue is not settled among the courts and different standards have been applied in various cases. But one thing is clear. If you are a modern day Lone Ranger or Zorro, you should not have the expectation that your anonymity gives you the right to say anything you wish about other people and organizations.
Even in Delaware, which has applied the most stringent standard, a plaintiff is not required to fully prove its case before an identity is revealed. And in the Texas case it doesn't appear any evidence was required before the plaintiff could learn the identity of the mysterious blogger.
If you are concerned about material you are publishing it is probably best to seek the pre-publication advice of a media lawyer.
Where should you incorporate your Iowa small business? This question is asked a lot by 
many prospective small business owners. The question used to be surprising but after seeing and hearing numerous advertisements for Delaware and Nevada corporations on the Internet and on satellite radio it is definitely a legitimate question.
Delaware has reputation and history on its side. Delaware's Division of Corporations boasts that more than a half a million business entities make their legal home in Delaware including more than 50% of all U.S. publicly-traded companies and 60% of the Fortune 500. Businesses, especially large ones, choose Delaware because of the state's business laws and respected Court of Chancery. Most observers say it is because of Delaware's predictability.
Nevada has recently exploded in popularity for many businesses. This is due to Nevada's pro-business climate, low-tax mentality and the lack of an information sharing agreement with the IRS.
Delaware or Nevada may offer viable options for some companies but in general most Iowa small businesses are probably wise to incorporate in Iowa. First, Iowa has very low fees when it comes to incorporating your business. It is a $50.00 fee to file Articles of Incorporation for a domestic corporation in the state of Iowa. Further, it only a $30.00 fee every two years for a biennial report if you file online. These fees are extremely low compared to other states.
Second, you won't avoid Iowa taxes by incorporating your Iowa small business in Nevada or Delaware if you are doing business here in Iowa. The tax and corporation laws of Iowa will require you to register your company and pay fees as a foreign corporation in Iowa and you will be required to pay Iowa state income taxes for any income earned. (You also do not avoid federal income taxes by incorporating in Nevada despite the lack of an information sharing agreement with the IRS).
And the perceived court advantages in Delaware? That might be fine for a large business that is actually going to litigate a case in Delaware but it is probably not cost effective for most Iowa small businesses to litigate their cases in Delaware. Besides unless you have well-written forum selection clause in contracts your Iowa small business will likely end up in Iowa courts anyway.
If you have questions regarding where you should incoporate your Iowa small business be sure to contact a business attorney licensed in Iowa.
Thanks to Kevin O'Keefe for the heads up on a lawsuit every blogger should know about. A Texas minor is suing Virgin Mobile Australia for use of a Creative Commons photograph in a commerical ad campaign.
The lawsuit alleges the use of the photograph by the company violated the minor's privacy rights. The plaintiff's attorney says the company should have obtained consent from the parents of the minor before using the photograph in the ad campaign. The photograph was posted on flickr.com by the minor's friend who is also a plaintiff claiming the Creative Commons failed "to adequately educate and warn him ... of the meaning of commercial use and the ramifications and effects of entering into a license allowing such use."
This should serve as a wake up call for bloggers. Many bloggers I know, including many of the IowaBiz authors, routinely upload photographs from the Creative Commons portion of flickr. Have you thought about whether you were violating the privacy rights of somone in the pictures you upload? Probably not.
Arguably it is much more likely a company using the photograph in a commerical ad campaign is going to get sued rather than your ordinary blogger. In this case the company also had phrases with the photos that could have been interpreted as offensive to the minor such as "Dump Your Pen Friend" and the real kicker - "Free Text Virgin to Virgin".
There is much discussion to be had on these issues including the blogs of Internet PR expert Shel Holtz and Stanford law professor Lawrence Lessig.
The lesson is be careful when you upload photos, even Creative Commons photos, from any sites such as flickr. As Holtz says:
. . . the social media community embrace and extoll the virtues of Creative Commons licenses, but this lawsuit seems to show that they are not a panacea. It’ll probably be up to the courts, ultimately, to decide who has rights to your image once it escapes into the social media space, with or without your knowledge or consent.
I also encourage you to check out the video of the plaintiff's attorney. He makes a decent argument on behalf of his client.
If you operate an online business or you are thinking of starting one I recommend you pick up a copy of Cyberlaw: A Legal Arsenal For your Online Business. Written by Iowa intellectual property attorney Brett Trout the book is new and updated with lots more content than his previous version. This book still has the helpful sample agreements and policies, but now covers new topics like document retention policies and social networking. Trout also offers easy how-to’s on avoiding legal pitfalls. The rich content and practical advice is bound to save you costly legal fees down the road.
The great thing about this book is that it is actually written for entrepreneurs - not lawyers. You will appreciate the easy to understand language. If you call Brett directly you might even be able to pick up an autographed copy from Iowa's toughest attorney.
There are two great opportunities for Central Iowa entrepreneurs tomorrow:
I encourage you to check out Blawg Review #126 written by Anita Campbell of Small Business Trends. Anita is a lawyer by training but an entrepreneur at heart. Her award winning Web site was the "Best of the Web" according to Forbes Magazine for small business blogs.
The lineup of small business experts on Anita's site is impressive. The articles are well-written and informative. Fellow IowaBiz authors should especially take notice. The site is something to which we should aspire.
And thank you to Anita for including my post on whether Licensing is a Viable Option Rather than Franchising?
I have written about how to hire a business lawyer at times in the past. My first rule is that the lawyer should be experienced and competent in business law rather than choosing a personal injury, family law, criminal law or other lawyer. My analogy used to be that you would not want a plastic surgeon operating on your heart. But I have a new analogy:
You wouldn't want a linebacker covering a wide receiver on 2nd and 13, right?
No disrespect to Mike Klinkenborg. The guy played his heart out.
Congratulations to Matt Gardner - the most faithful Iowa State Cyclone fan I know.
For anyone interesting in becoming a better blogger you need to read Kevin O'Keefe's Blawg Review #125. It's his business but no one has done more than Kevin and Lexblog to promote blogging among lawyers. Kevin's mantra for lawyer blogs:
'Do good - for society, yourself, and the image of our legal profession.'
Kevin has cited some of the most brillant minds in the blogosphere for you to continue learning the "art of blogging". Reading this post is a must.
P.S. The sharing of knowledge and ideas with fellow law and business bloggers has spoiled me. I attended a legal seminar this past week. I spoke with one of the speakers and asked him a few questions seeking recommendations for helpful Web sites and other information on his topic. His responses made it clear he did not want to share information with me because he viewed his information as "trade secret". I just want to say thanks to all those lawyers out there you are unafraid to share their insight with fellow practitioners in an effort to 'Do good - for society, yourself, and the image of our legal profession.'
Charlie Longbrief, attorney at law, had just turned off his computer late on a Friday afternoon when the phone rang. It was Pete Geek who owned a local computer consulting service.
"Charlie, I've got a problem," Pete said.
"Tell me about it," Charlie said.
"Well, I had to fire one of my sales people earlier this week. The termination seemed to go fine but he hasn't returned his company laptop or cell phone. I want to deduct the value of those items from his last paycheck or at least withhold his last paycheck until he brings those things back to me." Pete responded.
"Do you have any type of written agreement with him regarding the return of the equipment?" Charlie asked.
"No, I don't," said Pete.
Charlie advised, "I know it is frustrating but Chapter 91A.5 of the Iowa Code won't allow you withhold the check or deduct the value in this situation unless you have written agreement with the employee where the equipment has been specifically assigned to the employee, and acknowledged in writing by the employee. Also the written agreement should authorize you to deduct the value of the equipment from the last paycheck if not returned. If you violate the law you could be forced to pay the employee's attorney's fees, liquidated damages and any court costs plus the wages you owe him. You definitely have the right to your equipment but you can't get it that way."
"I am glad I asked. By the way, maybe you could prepare an agreement for my employees to sign authorizing me to deduct the value of the equipment from wages if the equipment is not returned," Pete asked.
"You bet. By the way, you may want to check out a blog post from Jill Pugh on 10 Things to Keep in Mind When You Fire an Employee. It's also a good idea to review the provisions of Iowa's Wage Payment Collection Act."
"Thanks a lot, Charlie. I am glad I called."
Photo on Flickr by cutesmallfuzzy.
* This is a hypothetical. Be sure to seek the advice of an employment attorney for advice in your specific situation.
Congratulations to What's For Dinner - Des Moines and its owners, Dawn Angus and Kristen Severs for their feature article in the Des Moines Business Record. The success of their meal assembly business has brought multiple inquiries from would be entrepreneurs who are wondering whether they offer franchises opportunities for their business. The thought of expanding beyond the single store operation had intrigued the owners but the investment of time and money is substantial. A franchise also opens you up to FTC and state regulations which require disclosure statements such as an offering circular.
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).
Iowa has very specific laws on franchising and other business opportunity promotions. In order to license your business product here in Iowa you must fall within the exceptions to the franchise and business opportunity promotions. Particularly if you are offering a business system or marketing plan to a new business it may be difficult to fall within the exceptions to these important regulations.
In order to determine if licensing is right for you be sure to consult a business and/or franchise lawyer before acting.
TheDes Moines Business Record features Iowa patent attorney Brett Trout and his foray into Mixed-Martial Arts (MMA) cage fighting. Brett is seeking a cage match against an "attorney to be named later" with all the proceeds going to charity.
So do you have what it takes to get in the ring with this 6'4",250 lbs., intellectual property giant? If so, call Brett to schedule your cage match today.
Iowa patent and intellectual property attorney Brett Trout posted yesterday on the recent ruling from a federal judge that struck down a key part of the Patriot Act. Brett refers to an article from the Associated Press.
It is important to note the judge immediately stayed his ruling so the government could appeal. I will follow this case as it moves forward and provide updates. This is a critical issue for Internet Service Providers.
A nice overview of the ruling and its potential impact is found on Concurring Opinions.
Thanks to Nina Kaufman for quoting my post "Employees v. Independent Contractors" on the Entrepreneur.com Blog Network. Nina's blog on the network is "Making It Legal: The small business mentor's guide to entrepreneurship and law." Her advice on the employee v. independent contractor issue is excellent:
This is not an area to play fast and loose with the law. It’s like gambling in Vegas; the house is stacked against you. As confident as you think you may be about the situation, it’s wise to confirm your choice with an employment or other business attorney.
Another blog post worth mentioning on the subject is from David Willis on his Texas Small Business Law Blog. David is right on track with his warning to small business owners:
The bottom line is that an SBO cannot simply say that a particular worker is an independent contractor and expect that decision to have legal effect. The consequences for failing to properly determine the relationship between the SBO and worker can be quite serious, resulting in legal liability to third parties, insurance issues, and penalties for unpaid employment taxes. For these reasons, it is critical that an SBO seek help from a professional when defining the nature of an employment relationship is important to the SBO’s business.
Is your business looking to blog? Want to find out more about how you can have a Web site on steroids?
If so, you definitely need to listen to DSMBuzz podcast with Mike Sansone of Converstations. Mike Sansone is a premier blog coach, not just here in Central Iowa, but also nationally. Particularly if you are a Central Iowa business you would be crazy not to to talk with Mike to learn how you can improve the communication with your customers.
Des Moines, Iowa lawyer and broadcaster George Davison shares his interesting insight and resources on George Davison Iowa Law. Many of you may know George from his work on WHO radio as a news anchor. He sports one of the best all-time radio voices I have heard. George is also an adjunct professor at DMACC teaching courses business and corporate law.
George is one of the few lawyers that make listening to case law updates at CLE seminars fun and enjoyable. His reviews of cases such as the recent decision in favor of DMACC on discrimination and retaliation claims are some of the best around.
George's blog is one for the blogrolls.
It's been a long time since I have written about the Microsoft-Iowa case but the hearing for final approval of the $179.95 million settlement is this Friday, August 31. The settlement received preliminary approval from Judge Rosenberg back in April and I anticipate the judge will grant final approval of the settlement.
Class members are entitled to receive $16 for each copy of Windows or MS-DOS they purchased; $25 for each copy of Microsoft Excel; $29 for each copy of Microsoft Office; and $10 for each copy of Microsoft Word, Works and Home Essential software. Consumers do not need proof of purchase to be reimbursed for up to $200.
Microsoft will provide one-half of the difference between $179.95 million and the unclaimed cash and vouchers to Iowa public schools in the form of vouchers that may be used by the schools to purchase a broad range of hardware products, Microsoft and non-Microsoft software, and professional development services.
One of the more interesting aspects of the settlement is that claims from consumers are trickling in very slowly. As of August 1, 2007, the AP reported that only a little more than 55,000 Iowans have filed claims. Class members are able to claim $200.00 without a receipt. It is likely that most of the claims are far below $200 but even if the 55,000 Iowans claimed an average of $200 that means the total payout for the class members is approximately $11 million at this point. Probably not too surprising because I think most people have a hard time working up any outrage over Microsoft's actions.
The plaintiffs lawyers, on the other hand, have requested $75 million in legal fees and expenses for the case. Initially Microsoft objected to the amount of the fees when Conlin requested more than $75 million but it is my understanding there will be no objections because Conlin has agreed to reduce her claim to no more than $75 million. (What would Brett Rogers say about this?) The judge will decide how much is awarded in fees.
For details on how to file a claim please go to www.iowamicrosoftcase.com. You must file your claim by December 14, 2007 or within thirty (30) days after the court grants final approval on the settlement, whichever is later.
Drake University Law School is hosting a Risk and Responsbility in the 21 Century Symposium on September 7, 2007.
The goals of the symposium are (1) to explore the notion of risk, (2) consider how we should respond to it in this century, both in the private and in the public arena, and in doing so, (3) examine the responsibilities of individuals, private institutions, and government.
The featured speaker is Tom Vilsack. Vilsack is the former two-term governor of the State of Iowa and former presidential candidate. He is now a visting distinguished professor of law at Drake Law School and an attorney with Dorsey & Whitney.
Also scheduled are a number of other terrific speakers including best-selling author Phillip Howard, trial lawyer Marc Stanley, Connecticut Law School professor Tom Baker, Harvard Business School professor David Moss, Drake University business professor Tom Root, Cedar Rapids Mayor Kathleen Halloran, and Iowa Insurance Commissoner Susan Voss.
The event has applied for six hours Iowa and federal CLE credit.
Congratulations to Vince Basile of Aerospace Geartech who is featured in an article about the Business Innovation Zone (BIZ) in today's Des Moines Register Business section.
Executive Director Mike Colwell worked with Vince to obtain grants through the Iowa Department of Economic Development and DMACC in order to purchase two manufacturing businesses (one from Ilinois and one from Florida) and move them to Iowa. Colwell also helped Vince with his business plan and other strategic issues.
Vince is an example of how persistance pays off. He would tell you that his search for a business was not easy. He looked at many different businesses until he found the right one (I guess two) for him. He is now in a business that fits his skill set and passions. He is extremely resourceful which will serve him well as he moves forward with his new business venture.
I also cannot say enough about the guidance and expertise of Mike Colwell. Every time I talk with him I learn something new about business and entrepreneurship. Central Iowa businesses are extremely lucky to have such a great new resource. If you are a start-up entrepreneur or a business looking for growth or capital, I highly recommend talking with Mike. BIZ does not actually make investments in companies but it does help entrepreneurs locate grants and find investors. BIZ is also able to provide assistance with improving business plans and open up valuable networking opportunities for new entrepreneurs. The thing I like best is that Mike won't always tell you what you want to hear. His objectivity and honesty is refreshing.
Many businesses make the mistake of treating employees as an independent contractors so they can save money on taxes, red tape and benefit coverage. The risks associated with this approach is often not worth it.
Businesses that misclassify workers often find themselves embroiled in wage and hour lawsuits or workforce development audits. These businesses could also face tax penalities and lack of insurance coverage in key liability situations.
Often, businesses treat employees as independent contractors because they fail to fully understand the distinction between the two categories. The most important difference is whether or not you have the right to control the work. Other factors, such as where the work is performed, who provides the equipment, how payment is made and if there are set hours, also play an important role.
Generally, an employee is someone whose manner of work the employer has a right to control, even if the employer does not actually exercise that control. True employees are sometimes known as W-2 employees because of the W-2 form issued to them for federal income tax purposes.
On the other hand, an independent contractor is someone you engage to perform a certain task, but whose manner of work you do not have the right to control. You have the right to tell your independent contractor what it is you want done, and you remain free to dismiss them if you do not like the work (depending on your contractual arrangement). Ultimately though it is the results you are interested in. The manner in which the results are accomplished is up to the independent contractor and is not subject to your control. An independent contractor is given a 1099 form to report income for federal tax purposes.
If you have questions about whether to treat workers as employees or independent contractors be sure to consult with an employment or tax lawyer. This area of the law is more complicated than just the control issue. Tax lawyer Tripp Atkins is currently analyzing the 20-factor IRS test for determining an employee or independent contractor on his blog.
The safest course is to treat workers as employees if the workers' status as an independent contractor could reasonably be questioned.
Photo on Flickr by Partsnpieces.
Want some great business advice? Looking for something interesting? Try out these posts:
Matt Gardner has an interesting post on his Wealth and Estate Planning blog about the "pot of gold" Iowa landowners are sitting on because of the renewable energy craze and why they should review their estate plan. (Sounds like Iowa farmers have something in common with today's hip-hop stars - both ignore estate planning).
Michael Moore (this one's no sicko) talks about what not to do when it comes to employment record retention / destruction policies on his Pennsylvania Employment Law Blog. Michael has written some great material on this subject and has some terrific comments on this blog as well.
Roy F. Harmon III addresses record retention for ERISA Plan administrators on his Health Plan Law blog.
Carl Lingren shares key interviewing tips for employers on his Employer Ease blog.
Brett Trout says technology lawyers are so hot but have you seen this guy's face lately. (Trust me, there is a story there).
The Business Innovation Zone (BIZ) has its first networking event today. The event is from 12:00 - 1:30 p.m. in the Arthur Davis conference room at the Greater Des Moines Partnership office at 700 Locust Street in Des Moines.
The featured speaker is Steven Smith, President and CEO of GCommerce. He will be talking about early stage equity funding for startup business, and what has changed in recent years. Lunch will be provided and there will be plenty of time for networking. The cost for the event is $8 for members, and $12 for non-members.
I am excited to announce that the Sullivan & Ward law firm will publish its Iowa Law Blog beginning in mid to late August. The firm's law blog will cover general legal issues inlcuding the following areas of law:
It will be a group effort by the lawyers at Sullivan & Ward. Our friends at Lexblog are developing the blog. Kevin and his staff have been great to work with. I'll let you know when it hits the blogosphere.
Michael Moore has an informative post on Developing a Record Retention Policy on his Pennsylvania Employment Law Blog. Michael raises a particularly insightful issue:
Anticipate the arguments that may be made and inferences that could be drawn from the destruction of certain documents and weigh it against the expense of retaining and producing the documents.
In a comment left on my Document Retention and Electronic Discovery post Michael pointed out that businesses need to carefully consider how the destruction of records pursuant to a policy might play to a jury. Often it may be important for a business to retain the information rather than destroy it. He warns,
The employer that destroys old e-mails "pursuant to its record retention policy" is left with the inference that the e-mail may have existed and, even worse, it was destroyed in order to keep the truth from coming out.
I agree that you must carefully consider these policies. That is why it is so important to assemble a team in order to develop a sound document retention policy. I would caution businesses to avoid pulling a form, changing the names and feel like you are covered when it comes to record retention. You should take into account the various ways your organization stores information and be sure to get the IT staff involved in the process. This will help you determine whether it is beneficial and practical to keep or destroy certain information. But whatever happens, do not forget to implement a litigation hold in the event of a dispute.
Part of the trial lawyer's job in business cases is explaining to the jury how a document retention policy works, why it was implemented and the methods by which the business consistently follows it policy. Developing trust can help alleviate the thoughts about businesses just wanting to keep the truth from coming out.
The IowaBiz.com site is gaining popularity daily. Yours truly is one of the contributing authors but the other eleven authors have me checking this site every day and reading it through my feedreader. I am continually impressed with the quality of the ideas and concepts developed by the authors. A couple of my recent favorites and applicable to readers of this site include:
Both posts were written by Joe Kristan of the Roth & Company Tax Updates Blog. Joe is one of the best business blog writers I have seen on the topics of accounting and finance.
Hats off to Professional Solutions Insurance Services for sponsoring the site. The company exhibits a pay it forward approach. They really "walk the walk" when it comes to putting the needs of small businesses before their own. And one of their agents, Brian Honnold, has turned out to be a pretty good blog author in his own right.
So congratulations to PSIS and the IowaBiz.com team. It is fun to be a part of such a great group.
Howard Hagen and Jeffrey Andersen of The Dickinson Law Firm have started the Iowa Banking Law Blog. This is sure to be a helpful resource for the Iowa banking industry.
A recent post on the Iowa Supreme Court's dismissal of an antitrust class action against Visa and MasterCard caught my eye. It appears there will be limits to the "indirect purchaser" argument featured in the Comes v. Microsoft case. Jeffrey says,
"... the court made it clear that the expansive language of Comes (stating that Iowa law creates a cause of action for “all consumers regardless of one’s status as a direct or indirect purchaser) does not give standing to all consumers injured by anticompetitive behavior. Even if adversely affected by anticompetitive behavior, consumers will not have antitrust standing under Iowa law unless they are direct or indirect purchasers of the product in question."
I also appreciated the nice compliment concerning my article on Document Retention and Electronic Discovery. If you are in banking and business I would say this is a blog you will want to place on your feedreader or favorite list.
In today’s business environment, organizations need to respond to an increasing number of document requests, from regulatory compliance issues to internal investigations to full-scale litigation. Much of this information is available electronically. Despite the prevalence of such document requests most organizations remain reactive rather than proactive when it comes to dealing with the issue of electronic discovery.
In reality, electronic discovery of documents has been around for several years. But late last year, the federal courts amended its rules regarding electronic discovery. Organizations can no longer afford to be reactive when it comes to the discovery of electronically stored information (ESI). Organizations not prepared for electronic discovery could face fines and/or sanctions if they are sued in federal court. (FYI: It is also expected that Iowa will soon amend its state civil rules regarding electronic discovery making it imperative that all businesses in Iowa should prepare for discovery of ESI).
One way to prepare your organization for the new federal electronic discovery rules is to have a solid document and email retention policy. If don’t have such a policy you need one but even organizations that have a policy should review their policy to make sure it covers issues that may come up under the new federal rules. Some important issues to cover include, but are not limited to:
It is important to have your IT staff involved in the process. Many organizations will write a policy but fail to take into account the various ways the organization actually stores information. ESI is present, not only on office computers, but also laptops, BlackBerrys, iPhones, other PDAs, and even cell phones.
Fortunately the new federal rules provide a “safe harbor” provision for those organizations that inadvertently destroy ESI during the routine, good faith operation of an electronic information system. How do you qualify for this safe harbor? The best way is through the implementation of an ESI management system that is actively enforced and audited. Investing in an ESI management system is likely to pay big dividends down the road if you are ever involved in litigation and is critically important under the new federal rules regarding electronic discovery.
For more information regarding the new federal electronic discovery rules, document retention policies and ESI management, you may want to check out my podcast with Brett Trout on electronic discovery issues. Another great resource is the Electronic Discovery Law Blog which I highly recommend.
Thanks to Rob La Gatta over at Lexblog for the heads up that the New York lawyer advertising rules have been declared unconstitutional.
I hope this means we will see regular posts again from Imke Ratschko of the New York Small Business Law Blog. She has great insight and practical posts that provide helpful legal information for small businesses.
Like the Portland Trail Blazers drafting Sam Bowie instead of Michael Jordan, how is it that Trent Hamm's Blog, The Simple Dollar, is not among the blogs listed on the Central Iowa Bloggers site? This guy is the Tim Duncan of the Central Iowa blogging community. Not flashy but extremely successful.
The Business Record has a great article on Trent and his phenomenal blogging success. His personal finance site is receiving 1 million page views per month and his technorati ranking is in the Top 500 in the country. He even earned $5,500 in income from his blog last month and is working on an exclusive joint sponsorship with another personal finance blog written by John David Roth.
It is easy to see why Trent's site has become so successful. It is chalked full of helpful personal finance tips and a common sense approach that obviously touches a cord with people. I am particularly interested on his re-evaulation of Money Magazine's 25 Rules to Grow Rich By.
FYI: Be sure to check out the newly designed Business Record Web site. Much improved. The RSS feeds are nice but are blogs in the Business Record's future?
Very soon Rush on Business will have a new design courtesy of the pros at LexBlog. Kevin O'Keefe and his talented team are putting the final touches on the blog and I am eagerly anticipating the change.
Why did I switch?
For more reasons on why to consider LexBlog check out this post from legal marketer extraordinaire, Larry Bodine, who also switched from Typepad to LexBlog.
Stay tuned for the change soon.
Pennsylvania business lawyer Anthony Cerminaro has a post on Legal Issues in Internet Contracting. The post references a comprehensive article from attorney Karl Belum of the Thelen Law Firm's San Francisco office.
The article provides an excellent overview of the issues involved in Internet contracting. Belum advises:
"Entities engaging in repeat transactions can contractually adopt agreed upon digital signature/electronic commerce ground rules which will be enforced. Entities engaging in single, high value transactions with parties with whom they have no ongoing relationship may still wish to utilize conservative methods such as confirming faces or paper documents."
My experience is that many business people are still confused by what constitutes an enforceable contract over the Internet. If you are engaging in a single transaction with whom you have no ongoing relationship it is probably excellent advice to utilize paper documents. But if you are running an eCommerce Web site that may not be feasible or fit into your business plan. In those instances you will want to set up Web site policies which eliminate any ambiguity as to when or how a contract is entered into.
If you run an eCommerce Web site or regularly conduct business on the Web you may want to check out Internet Laws Affecting Your Company written by Brett Trout. The book is a great resource. I highly recommend it.
I am hoping you will provide me with some input. What do you think are the top legal issues facing small businesses today?
My general sense is that employee/human resource issues rank high. If you are a small business owner, what keeps you up at night from a legal perspective? If you are a lawyer or consultant, please add your perspective.
Please comment below. Don't be shy. I am hoping to develop some blog posts surrounding this discussion and I would love to hear from you. If you are not interested in commenting publicly, please feel free to email me at rnigut@sullivan-ward.com. With your input I should be better able to hone in on the legal issues facing small business owners.
Thanks for reading. I appreciate it.
If you are in business long enough it is likely you will eventually face a dispute with a customer, employee or another business. Are you prepared to face the challenge?
Anthony Zaller of the California Labor and Employment Law Blog provides some Tips on Litigation that expand on the sage advice from Sun Microsystems general counsel, Mike Dillon. Here are the key strategies discussed:
Zaller makes a great point that businesses should hire legal counsel BEFORE trouble occurs to develop and implement policies that 1) comply with the law and 2) assist the company when a lawsuit is filed. He points out that No. 2 is important because not only do you need to comply with the law but you also need PROOF that you comply with the law.
I also agree wholeheartedly with Dillon's commentary regarding litigation:
... it's important to remember that litigation is just a tool. And, as with all tools, it is effective only when used dispassionately, in the right way and for the right reasons.
I often hear business owners and individuals say they want to pursue or defend a case because of the principle of the matter. This initial emotional reaction tends to disappear after legal fees mount and resources are diverted from the actual operation of the business. Win or lose, business owners rarely enjoy litigation. Like Dillon, I encourage you to approach litigation dispassionately and consider the best business approach to ending your dispute. Sometimes the best business approach means litigation is necessary but only after you have carefully evaluated all aspects of your case to determine how to prevail, or at the very least, extract yourself from the litigation under the most favorable settlement terms.
On the Texas Small Business Law Blog there is an helpful post on the common mistakes made by small business owners. The common mistakes listed by business attorney David Willis include:
1) Under-capitalization.
2) Failure to plan and adjust for growth.
3) Over-emphasis on the type of business organization.
4) Failure to understand the impact of an employee.
5) Failure to understand the impact of employees.
6) Not having an employee manual.
7) Thinking: "I've got some experience, I can do this myself."
8) Not keeping up with the paperwork.
9) Failure to plan for litigation.
10) Not having an electronic document retention policy in place.
11) Failure to consult an attorney.
David is following up with more detailed posts about each mistake. The one that caught my eye was No. 3 - over-emphasis on the type of business organization. David warns that small business owners should not consider themselves invincible just because they have formed a business entity. The small business owner must operate the business as a distinct entity.
In the past I have written about some of the exceptions to limited liability. The best way to maintain limited liability with your corporation or LLC is to is to make sure you keep your personal guarantees to a minimum, pay applicable taxes and keep all business dealings separate from your personal accounts. Managing your small business corporate goverance (i.e. regular meetings of shareholders and directors with minutes documenting the meetings) is also critical.
Many business owners I talk with are reluctant to enter into a non-compete with their employees. These business owners are afraid an employee won't sign or a confrontation will occur. Some just don't believe they should keep the employee from finding a job - even if it is to the employer's detriment.
But to avoid disruptions to your business or losing customer relationships you should consider non-compete agreements in certain situations. This is especially true if the employee has a close relationship with the customer and could easily take the customer if the employee leave your employ.
The best time to secure a non-compete agreement is when you hire the employee although continued employment may be sufficient consideration to bind even current employees. Iowa courts have developed a three-part test to determine whether a non-compete agreement is enforceable:
1. Is it necessary for the protection of the employer's business?
Factors to consider: Does the employee have a great deal of personal contact with customers? Is the employee in a position to lure customers away? Have you spent significant time and money training the employee?
2. Is the non-compete unreasonably restrictive of the employee's rights?
Factors to consider: Is the non-compete limited in time? The most common time restrictions are 1-3 years. Courts tend to favor shorter time restrictions. (This will always depend on the cirmcumstances of the particular case).
Is the non-compete limited in geographic scope? For a local business, a 50-mile limit may be reasonable while a regional business may use a scope spread out over several states. It depends on the market area of the particular business. Because of the Internet and other technologies, geographic limits are becoming a less effective way to control competition from former employees. Businesses must carefully consider how to be reasonable and still control competition in the global marketplace.
3. Is the non-compete prejudical to the public interest?
Factors to consider: Does the particular non-compete harm the general public? This part of the test has rarely been used to invalidate non-competes in Iowa. For example, non-competes in Iowa have been upheld against doctors and dentists where you might expect that limiting access to health care could harm the general public.
Finally, Iowa has adopted a "partial enforcement" doctrine permitting a court to uphold a non-compete agreement to the extent it is reasonable and allowing the Court to modify terms if necessary. For example, a court may reduce a time restriction from 3 years to 1 year if the judge finds that is appropriate. Or, a judge could change a geographic restriction from the entire state of Iowa to a 100-mile radius of the business. This is different from an all or nothing approach where a judge might declare the entire non-compete agreement invalid if just one of the terms is found unreasonable. When litigating non-compete agreements in Iowa the parties must consider whether the agreement may be partially enforced.
If you are one of those who is not comfortable with a non-compete agreement for your employees I would strongly encourage you to have at least confidentiality and non-solicitation agreements. These agreements generally provide protection for your business without restricting the employee's ability to work elsewhere. If a departing employee attempts to take clients or other employees with them you will be glad you had those agreements in place.
*Remember there are several pitfalls relating to these agreements if not written correctly so be sure to contact your employment or business lawyer to review and/or draft such agreements. For more information read this interesting article on The Power of the Noncompete Clause through the Harvard Business School.
Photo on Flickr by D.F. Shapinsky (pingnews)
Brett Trout has a post worth reading on "Who Owns Your Website?" In the post Brett warns clients to carefully read the agreement and to take steps to ensure you own your Website and the domain name. As Brett says,
"Most clients think they are obtaining an "assignment" of these things when they write a check. They are shocked to learn that the people they paid to create these things actually still own them. Intellectual property laws are designed to protect the creator, to encourage the creator to create. If you hire someone to design a website for you, what you are actually purchasing is a "license" to use the design for the use intended by you and the designer."
So make sure to read your written agreement with the Web developer and carefully negotiate the terms of ownership of the site before you make any payment and before any work is performed by the developer. Further, there is really no reason to have the developer obtain your domain name for you. Just go to www.godaddy.com or some other site to obtain the domain name on your own. It is easy and if you register it in your own name there won't be questions about who owns the domain name down the road.
P.S. I also wanted to give a big shout out to Brett who is speaking at the Blog World Expo. Brett is talking on keeping your blog out of court. The Expo is November 8 and 9 in Las Vegas. See the Blog World Expo Blog for information on the conference schedule. Congratulations on your selection, Brett.
A dry cleaner has finally been vindicated in court by winning a defense verdict against the administrative law judge who originally filed a claim against them for $67 million.
Thanks to the WSJ Law Blog for a link to the opinion and judgment. For those interested, the award of costs to the defendant does not include an award that plaintiff must pay for defendant's attorney's fees at this point. There is a pending motion for sanctions concerning the attorney's fees issue so we must wait to see whether the judge awards fees to the defendant. (Read the end of the 23-page opinion for details).
Want some great business advice? Here are some of my favorites from the past week:
Tales from the Front: Getting Business From Corporate Clients by Larry Bodine on The Law Marketing Blog. This one is specific for lawyers. The post reinforces my theory that hourly rates are going away and that corporate clients want fixed fees and budgets for legal expenses. Also gives great advice to use news aggregators and subscribe to RSS feeds.
Indifference Kills by Brett Rogers on Beat Canvas. Brett is writing passionately about Listening Well. It's true, people need to know you care.
Speaking as a Performing Art by Guy Kawasaki on How to Change the World. The biggest fear for most people is public speaking and you can never read enough on how to improve your presentation skills. The greatest speakers I know practice, practice, practice.
Do you have any suggestions for great business advice over the past week?
"More business decisions occur over lunch and dinner than at any other time, yet no MBA courses are given on the subject." - Peter Drucker
Networking is a key for every successful professional. A growth capitalist with Transition Capital Management in West Des Moines, Adam Steen will teach professionals at our Secrets of Successful Professionals Revealed seminar how to connect with others on many different levels. He helps small to medium sized companies gain access to key relationships and resources in order to grow and gain value. He has also developed speed networking events in Central Iowa that have been a tremendous success.
To enhance this process, Adam and his company have built a network of experts in various disciplines in order to effectively drive private company growth. At present, he represents the 'eyes' and 'ears' of Transition Capital Management in the private company marketplace. Prior to his position with Transition Capital Management, Steen spent a period in Minneapolis as an insurance agent and coordinated several small business related networking groups. Before that he enjoyed a brief stint in the Philadelphia Phillies minor league system as a pitcher. His education background includes an undergraduate degree in Marketing from Minnesota State University in Mankato.
For more information on the Iowa Business Conference 2007 seminar and the other speakers check out our Events Page. The seminar is July 20th. Register today!
Questions? Email Brett Trout at trout@bretttrout.com or Rush Nigut at rnigut@sullivan-ward.com.
The Tennesse Business Litigation Blog has a post discussing the use of an ombudsman in business to prevent lawsuits.
"The ombudsman position can be a very effective tool which provides an outlet for disgruntled employees to air disputes and reinstate respect in the workplace. A large percentage of litigation, including employment litigation, is spawned from misunderstanding. Imagine how much money a business can save by having an experienced neutral person review and assess a dispute before lawyers become involved. An ombudsman can also educate managers about dealing with workplace conflict and identify certain weaknesses in specific managers relating to interpersonal dealings that can be valuable come evaluation time."
Sullivan & Ward lawyer Larry McLellan is likewise a huge proponent of an ombudsman in a business. Larry, who frequently serves as a mediator and has a master's in law degree in dispute resolution, has studied how businesses can reduce their legal costs through the use of an intermediary in the workplace. Naturally it tends to be large businesses that use ombudsman programs but small businesses should also consider it. Larry is always available to discuss with businesses and industry groups how they can reduce their legal costs by incorporting effective dispute resolution strategies in the workplace.
A few days ago Brian Honnold had an excellent post about the fear of lawsuits by America's small businesses over on IowaBiz.com. The most alarming statistic? Small businesses bear 69% of the total cost of the tort system to all U.S. businesses. That's $98 billion a year in costs. Further, six in ten small business owners feel constrained when making business decisions because of the fear of lawsuits.
So what's the solution?
Many call for legal reform. That's what the Institute for Legal Reform is all about. But is it really working? Despite millions of dollars poured into extensive campaigns, it is apparent our nation's small businesses do not feel any safer.
Should we kill all the lawyers? Wait . . . I shouldn't have said that. I am a lawyer.
The best protection for small businesses is to build a solid foundation. A house of bricks rather than one of straw or sticks. As Brian discussed, insurance is a component in building that solid foundation but other protections are necessary.
Here are five suggestions on how to protect yourself from lawsuits:
Be proactive. Don't wait for the wolf to knock on your door before you protect yourself.
P.S. I wrote this post originally for IowaBiz.com. The blog sponsor, Professional Solutions Insurance Services, and its parent company, NCMIC, had a nice write up in the Des Moines Business Record this week.
Photo by Laenulfean on Flickr.
We are excited to have entrepreneur and local radio star Jim Goodman speak at the upcoming Secrets of Successful Professionals Revealed seminar. Are you routinely looking at ways to help your clients get what they want? Perhaps even outside your professional discipline? If not, you are likely missing golden opportunities to grow your business.
Jim is the CEO of Customer Ease, Employer Ease and Emerging Growth Group in Des Moines. He is a frequent speaker on business topics and is the host of the Iowa Business Hour. Jim's program emphasizes the 4 M's of creating a successful business venture - Money, Management, Marketing and Model.
Although Jim played college football at Saint John's University (there is a story there) we won't hold that against him. One of the philosophies he learned from his legendary football coach is, "We are just ordinary people, doing ordinary things, extraordinarily well." Jim personifies that philosophy. Don't miss the chance to hear him talk on how you can succeed by bringing others success.
For more information on the Business Conference seminar and the other speakers check out our Events Page. The seminar is July 20th. Register today!
Questions? Email Brett Trout at trout@bretttrout.com or Rush Nigut at rnigut@sullivan-ward.com.
On her Employee Handbooks Blog Jill Pugh discusses 10 things to keep in mind if you need to fire an employee.
A no-no I see the most on the list is the desire to withhold money from the employee's last paycheck. (See No. 5).
Employees are often issued laptops, cell phones and other technologies. Unfortunately employees will often fail to return equipment when they leave the company. When that happens many employers want to deduct the value of the equipment from the employee's last check. Iowa employers must familarize themselves with Iowa Code Chapter 91A.5 concerning deductions from wages. This chapter prohibits an Iowa employer from withholding or diverting all or a portion of an employee's wages unless permitted by state or federal law or a court order. An employer may be allowed to deduct wages if the employer has written authorization from the employee to deduct for a lawful purpose that benefits the employee.
Consequently an employer may want to consider a written agreement with the employee upon issuance of the equipment. The agreement should authorize the employer to deduct the value of the equipment from wages if the equipment is not returned. With the appropriate language an employer may be allowed to deduct from the last paycheck.
Please be sure to consult an employment lawyer for specific advice concerning your circumstances.
Joe Kristan, Central Iowa's premier blogging accountant, reminds us in a recent post that LLC and corporation owners are responsible for unpaid payroll taxes. The most important take from the post:
The moral? Never, ever fail to remit your payroll taxes; if you do, don't expect an LLC, or any other entity for that matter, will fend off the IRS.
Joe also expands on his post in a recent article on IowaBiz.com. I encourage you to subscribe via RSS to Joe's blog and also IowaBiz.com. Joe's blog is entertaining and informative. Who knew an accountant could have such a sense of humor? IowaBiz.com is particularly interesting because it features 12 business bloggers from several different disciplines including marketing, law, accounting, networking and more.
Have you ever been in a meeting where everyone avoided the "elephant in the room"? In our business and daily lives we all avoid certain conversations. At work we send emails when we should talk to someone in person. Or, we often ignore issues altogether which only makes matters worse. Mastering Crucial Conversations and confrontations is a key to high performance and improving relationships.
At the upcoming Secrets of Successful Professionals Revealed seminar Shirley Poertner will introduce you to the concepts in how to master your Crucial Conversations. When stakes are high, opinions vary, and emotions run strong, top performers turn disagreements and differences into dialogue. That's where Crucial Conversations skills are critical. They turn diversity into synergy and synergy into results.
Shirley is an accomplished presenter who provides two-day workshops on Crucial Conversations and Crucial Confrontations in Iowa. Her background includes management and business experience with Pioneer Hi-Bred International, Meredith Corporation and First Interstate Bank (now Bank of America). Her company, the Poertner Consulting Group, is focused on helping business professionals achieve their full potential.
For more information on the LAWpportunities seminar and the other speakers check out our Events Page. The seminar is July 20th. Register today!
Questions? Email Brett Trout at trout@bretttrout.com or Rush Nigut at rnigut@sullivan-ward.com.
Brett Trout and I want to stress one thing about our upcoming seminar Secrets of Professionals Revealed. It's a business conference! Yes, we are lawyers and lawyers are invited but so is every other professional on the planet.
Here's our theory behind this conference: We attend continuing legal education seminars frequently. Unfortunately those get to be a bit boring, and dare we say, a bit repetitive. So we wanted to listen to great speakers talk on interesting business topics. We thought you might like to listen too.
You won't find a better lineup of speakers at one conference in Iowa this year. Kevin O'Keefe from Lexblog is coming all the way from Seattle, Washington. Kevin is a successful entrepreneur (and lawyer) that has already sold one company to LexisNexis. His new company is the premier company building blogs for lawyers and other professionals. We are really excited and fortunate to have a speaker of his caliber join us.
But that is not meant to take anything away from our strong contingent of Central Iowa presenters. They are all success stories themselves. A couple are lawyers but the others are all business professionals. We even have a business coach to kick you in the pants. (Take a look at the lineup). Some of the topics at the seminar include marketing and branding, networking, crucial conversations, office politics and work/life balance.
So don't be fooled into thinking this seminar is only for lawyers. If you're not a lawyer and have the courage to swim with the sharks we'll see you on July 20th. So don't wait, Register today!
Want some great business advice? Here are some of my favorites from the past week:
Take Risks, Run with Scissors by Shirley Poertner on IowaBiz.
2 Ways to Safeguard Your Attitude by Hugh Hollowell on Politically Incorrect Entrepreneur.
Volunteer a Little by Michael Libbie on Insight Advertising - Marketing Communications.
At the upcoming Secrets of Successful Professionals Revealed seminar you'll get your chance to hear from Tre Critelli. Tre and his father, Nicholas Critelli, have the only law firm within the United States that features a pair of English barristers and U.S. trial lawyers.
The use of technology in Critelli's office is innovative and the envy of lawyers (and small office professionals) across the United States. In an effort to keep clients fully engaged they have created a virtual law office where clients may enter a password protected site at any time and receive case updates, enter into a discussion or dialogue concerning their case or access documents, video presentations and deadlines. In addition, the firm hosts a virtual conference room where clients attend case briefings.
At the seminar though Tre will concentrate on networking beyond artificial boundaries. Choosing the right mix of professional networking, social networking, blogging, technology and real world connections is what Networking 2.0 is all about. Tre will help you take your career from being the small fish in one big pond to being the big fish in lots and lots of of small ponds.
As you might expect from someone with such a diverse background, Tre is an entertaining and creative speaker. Come join us for the seminar on July 20th.
For more information on the LAWpportunities seminar and the other speakers check out our Events Page.
Questions? Email Brett Trout at trout@bretttrout.com or Rush Nigut at rnigut@sullivan-ward.com.
Bigger isn't always better. Victoria Herring is a successful sole practitioner who practices in the areas of civil rights and discrimination law in Des Moines. She is a believer in cutting-edge technology including the latest Apple technology, Web-based communication and online research. She will lend her expertise in how professionals can start their businesses on a shoe-string and use technology to gain an advantage over the slower moving "big boys."
Victoria is an accomplished speaker who provides consulting services for employers and has successfully represented plaintiffs and defendants in civil trials. As with most things, the Internet has changed the landscape for professionals. Victoria has embraced new technologies and believes that personal service and the ability to treat each client as an individual is what separates many small firm professionals from the pack.
For such an accomplished lawyer, Victoria's office is a little different than you might expect. She does not work from an ivory tower but instead chooses to work from home. Today's technologies allow her to remain responsive and competitive and she will show you can do it too.
The expectations of our clients are changing and professionals like Victoria Herring are listening. Are you?
For more information on the LAWpportunities seminar and the other speakers check out our Events Page.
Questions? Email Brett Trout at trout@bretttrout.com or Rush Nigut at rnigut@sullivan-ward.com.
Penny J. Ummstattd-Cope of the Joplin, MO Business Blog points out that today's women need to be just as concerned about protecting their assets as men. Penny says:
Women should start thinking about protecting their assets before they get married or even enter into a living arrangement with a man. Why? More and more women are seeing an increase in their income due to owning their own business, working their way up the corporate ladder, etc. In many cases the woman's income will be more than the man. Women need to start thinking about protecting their assets just like the men have always done.
It is sound advice from Penny. I am seeing more and more women starting businesses than ever before. It is also my impression that more women are becoming professionals such as lawyers, doctors, pharmacists, and accountants than ever before. These women definitely need to consider asset protection.
Penny's post on Prenups for Women has lots of good information. Be sure to check it out.
All politics are local. Including the office. Do you know how to play the game or is the game playing you?
Timothy Johnson is a business consultant, author and adjunct professor in the MBA program at Drake University in Des Moines. We are excited to have Timothy share his insight, wit and wisdom on office politics at the upcoming Secrets of Successful Professionals Revealed seminar.
Timothy is the author of GUST - The Tale Wind of Office Politics. Check out Drew McLellan's review of the book. As Drew says, "Without the ability to spot office politics and do the necessary analysis to identify the motives behind the behavior, we don't stand a chance of being successful."
Learn more about Gust and Timothy on his blog, Carpe Factum. If you don't know what Carpe Factum means it is the Latin equivalent of "Git'er done!". So come have fun and learn valuable skills in how to deal with office politics at the same time.
For more information on the seminar and the other speakers check out our Events Page.
Questions? Email Brett Trout at trout@bretttrout.com or Rush Nigut at rnigut@sullivan-ward.com.
When the Don of the Central Iowa Blogga Nostra asks you to do something - you oblige. So here is my addition to the conversation Liz Strauss started on blogging as a metaphor.
For me, baseball is life. Steve Rubel once compared blogging to baseball when he said:
Baseball is a good metaphor here. A blog link/mention combo is like a home run - a four bagger. You get attention, Google Juice, traffic and branding. Blog links without mentions and plain old mentions are like doubles because in either case you get two out of these four bases.
Ahh, but what about RSS? RSS is opt-in and it's attention. What if you score a blog link/mention combo in a popular feed you know has a high degree of attention among your target audience? Then we're talking about a Grand Slam, right?
Although we probably hate to admit it most bloggers are really singles hitters. Bloggers who make contact with their audience on a day-by-day basis rather than the big splash of the home run. No, its not always glamorous or pretty. But in a game where the home run hitters receive all the attention it is often the singles hitters that provide the all-important margin of victory.
In other words, blogging is a whole lot more like Tony Gwynn than it is Barry Bonds. So hit singles and you just might end up in the Hall of Fame.
Photo on Flickr by Scott Ableman.
Are you a professional in need of a kick in the pants? If so, you won't want to miss the upcoming Secrets of Successful Professionals Revealed Seminar in Clive, Iowa on July 20th to hear Mitch Matthews talk about Life/Work Balance along with some great motivational messages. Mitch is the Head Coach of a Kick in the Pants Personal Coaching.
Mitch is one of those guys everyone loves to be around. He has an infectious personality and someone that spends a great deal of time helping others connect. His recent BigDreamGathering attracted hundreds of participants and his game Q is taking off like wild fire.
Mark True of Stories By REL wrote a great blog post describing Mitch Matthews. It's worth a read. If it doesn't make you want to hear Mitch speak then nothing probably will - except perhaps a kick in the pants.
For more information on the seminar and the other speakers check out our Events Page.
Come join us for the LAWpportunities sponsored "Secrets of Successful Professionals Revealed" business conference on July 20, 2007 at the Professional Solutions Insurance Services Center in Clive. It is a seminar you won't want to miss featuring many of Central Iowa's top professionals and renowned law blogger and entrepreneur, Kevin O'Keefe of Seattle, Washington. Kevin is the President and founder of LexBlog, the leading provider of provider of marketing blogs for lawyers and other professional service firms.
Today's professionals have at their fingertips the tools and ability to make networking better, faster, cheaper and more effective than their predecessors ever could have imagined. LAWpportunities offers you the strategies, insights and secrets of successful professionals, showing you how to fill the gap left by businesses unwilling to adapt.
Topics include:
This seminar is designed to help any professional including lawyers, accountants, bankers, insurance agents, real estate agents, mortage brokers, financial planners and more. (Yes, we're lawyers but other professionals will benefit from this conference just as much). The seminar itself offers a tremendous networking opportunity and the speaker lineup is sure to be one of the best in Central Iowa this year.
Our A-list of speakers include:
Kevin O'Keefe - law blogger extraordinaire and successful entrepreneur
Drew McLellan - marketing and branding
Mike Sansone - changing how businesses talk with their clients and customers
Adam Steen - networking for the professional
Jim Goodman - Bring your clients success and your success will follow
Shirley Poertner - Crucial conversations and communication
Tre Critelli - lawyer and online networker
Victoria Herring - lawyer and expert on solo professional practices
Timothy Johnson - Author, consultant and office-politics expert
Mitch Matthews - Life / business coach and entrepreneur
Check out the Events page of the LAWpportunities site for more details and seminar information. We will have our online registration up and running very soon but if you just can't wait to register you can feel free to email Brett Trout (trout@bretttrout.com) or Rush Nigut (rnigut@sullivan-ward.com) for registration information.
We look forward to seeing you on July 20th!
I invite you to check out a special Memorial Day Blawg Review #110 from Norman Gregory Fernandez of Biker Law Blog. Fernandez describes Memorial Day this way:
You see Memorial Day is a day that is set aside each year to honor those men and women who have lost their lives in the Service of the United States of America.
To honor these men and women is to honor not only the United States of America, but to honor the freedom for which the United States of America stands.
Above all, Memorial Day is a day is to remember those brave souls whose willing self sacrifice has given us all a chance to live free in the greatest nation on earth. God bless those men and women who have died in the service of the Untied States of America.
It is hard to say it any better than that.
Governor Culver recently signed into law a bill providing $4 million in funding for Iowa's Targeted Small Business Program. To qualify under the program a business must have sales of less than $3 million and be at least 51% owned, operated and managed by women, minorities or persons with disabilities.
If you have a business that may qualify under the program you can receive your certification through the Iowa Department of Inspection and Appeals or the Iowa Department of Transportation. A qualified recipient will be eligible to receive up to $50,000 for start-up expenses.
Iowa - the new Hollywood? It may sound crazy but Governor Culver and lawmakers are hoping to snare more filmmakers with the passage of a new law that provides incentives for movie producers who create their films in Iowa.
The Iowa Film Promotion Act (House File 892) offers 25 percent tax credits for local filmmaking expenses and overall investments for films shot in Iowa with budgets of more than $100,000. Details of the program have yet to be determined but there will be an application / certification process followed by a claims submission process. If you are a filmmaker or investor interested in these incentives please contact the Iowa Film Office for more information.
The new law allows Iowa to compete with surrounding states that offer similar incentives. It will also have another positive impact. Young, aspiring filmmakers now have a reason to stay in the state rather than take off to Southern California, New York or Chicago. According to an article in the Des Moines Register, that is just what three young filmmakers intend to do.
With the new law and upcoming movie releases like the The Final Season, maybe the rise of the film industry in Iowa has just begun. Baseball movies could be our ticket. The Cityview reports another Iowa movie called "Sugar" is planned about a Domican baseball player. Of course most people remember "The Field of Dreams" which is one of the all time great baseball movies and its famous dialogue, "Is this Heaven? No, it's Iowa." The movie site in Dyersville still remains open to the public to this day.
I wonder if it is too big of a leap to go from lawyer to blogger to screenwriter?
*I originally wrote this post for IowaBiz.com.
Iowa Governor Chet Culver signed a bill today expanding housing and civil rights protections to the LGBT community. In signing the bill Governor Culver said,
"It is unacceptable that members of the LGBT community are denied the same protections as every other Iowan, and that is why I made a promise to do whatever necessary to grant these individuals the rights they deserve. I am happy to say that today, we keep this promise. This legislation will guarantee that no individual, regardless of race, age, gender, sexual orientation, or gender identity, is denied the protections of state government."
If you are an Iowa employer be sure to talk with your employment lawyer concerning your employee handbooks and anti-discrimination policies. It is important to review your handbooks to make sure your anti-discrimination policies now cover sexual orientation and gender identity. Failing to include such provisions in your policies could result in increased liability.
With Memorial Day coming up next Monday I thought it appropriate to touch on Military Leave Laws and Veteran Discrimination.
A law known as the Uniformed Services Employment and Reemployment Rights Act (USERRA) protects the rights of military service members to take a leave of absence to take a leave of absence from their civilian jobs for active military service and to return to their jobs with accrued seniority and other protections.
Some of the core protections include (a couple of nice overviews are here and here):
However, as the Employment Advisory blog points out about a recent 11th Circuit decision involving USERRA, the rights of the military service members do have their limits.
Employers are required to provide notice to persons entitled to the rights and benefits under USERRA. In Iowa you can find information on how to obtain your USERRA poster by going to the Iowa Workforce Development Web site.
Sixteen-year-old racing phenom Joey Logano accomplished what Jimmie Johnson could not this past weekend. He raced past the reigning 2007 Daytona 500 Kevin Harvick to win the NASCAR Grand National Featherlite Coaches 200. Harvick earned a $1 million payday Saturday night, winning the Nextel All-Star Challenge but didn't have enough left to hold off the young Logano.
The largest crowd in Iowa Speedway history - estimated paid attendance 24,741 -witnessed terrific side-by-side racing as Logano and Harvick changed the lead 15 times during the race. 
The only people happier than Logano had to be the Iowa Speedway management and Rusty Wallace. Harvick had lots of great things to say about the track despite the loss. His most encouraging comments came when he said the Speedway would be a great facility for the Craftsman Trucks and Busch Series. The Nextel Cup series schedule is a little full but overall Harvick's comments had to be music to Newton's ears.
With nearly 25,000 attending a Busch Grand National race it ought to be an awesome crowd for the upcoming Indy Racing League. Not sure if any tax breaks were involved with the Speedway (a little dig Joe) but it sure is great to see that kind of development in Iowa and the enthusiasm exhibited by the fans. It was great fun and I highly recommend you grab a seat for the upcoming Indy race on June 24th. Even if you are not a big race fan it is sure to be a great time.
For more on the action last Sunday check out Doug Mitchell's post on Moments of Clarity.
P.S. That's me in the green shirt behind as Harvick gets into his car before the race. Thanks to Dave Slinker for the pictures. Dave and I reported for the Iowa Sports Connection about the race.
Many employers today are conducting do-it-yourself background checks by surfing search engines and other social network sites such as Faceboook and MySpace. I have discussed the risks and liabilities of utilizing such background checks in the past.
Another reason to be careful before using search engines or social network sites is "cyber slamming". It occurs when defamatory statements are made about individuals on the Internet. The Internet is full of sites and chat rooms where anyone can make postings. Some of these may be anonymous comments that are not reliable.
Recently I was contacted by a prospective client who complained someone was writing defamatory and damaging comments about them on the Internet. While a lawsuit is a consideration another option may be a service from ReputationDefender which attempts to remove such harmful comments for a fee and also provides monitoring services for clients.
I also suggest you follow this tip from Susan Cartier Liebel:
The same way you check your credit report on an annual basis, Google your name and your company's name on a weekly basis to see if there is any information circulating that you find is potentially threatening to you. You must stay proactive and aggresively stamp out any malicious virus threatening to infect and destroy your good name on the internet.
Like so many things from a legal prospective, protecting your reputation on the Internet requires you to be proactive.
The Better Business Bureau warns businesses across the U.S. and Canada of a spoofing scam using the BBB name and a false BBB email address to entice recipients to access potentially damaging hyperlinks.
The most recent e-mail has a false return address of consumer-complaints@bbb.org and a phishing hyperlink citing a BBB complaint case number, for example, "DOCUMENTS FOR CASE #BBA749BED0". These links actually direct access to a subdirectory of the hacked firm's website where users are asked to download documents related to the complaint. The download is actually an executable file that is believed to be some form of a computer virus.
All recipients are advised that any e-mail from the consumer-complaints@bbb.org address is not coming from any BBB and should be considered counterfeit. The BBB strongly encourages recipients of any such message to delete the message immediately without clicking on the "DOCUMENTS FOR CASE" links.
So be careful and delete any such messages. If you receive a complaint from the Better Business Bureau you will generally be notified by letter and you will have some advance warning of the complaint.
Mike Sansone pointed out a great new small business resource today in his post on IowaBiz.com. Small Business Link is a new offering from the Wall Street Journal Online. Each month the Small Business Link will focus on one particular issue facing small business owners. From there, readers will be able to participate in conversations with others, including the people featured, on the various topics.
The first month featured Employee Benefits and this month's feature is IT Outsourcing.
Be sure to check this resource out. It looks to be very helpful. Thanks to Mike for the great find.
Earlier this week Larry McLellan and I spoke to a group of clients concerning employment law. Larry gave a fascinating talk on conflict in the workplace. I took two main things away from Larry's talk. First, not all conflict is negative. There can be constructive conflict in the workplace. Second, people who have good conflict management skills spend less time dealing with unproductive conflict. Employees who are trained in conflict management can manage conflict so that it creates positive results instead of tension and stress. And this is important because unproductive conflict in the workplace often leads to litigation.
Well, a cure for workplace conflict may just be a new book written by Timothy Johnson called GUST - The "Tale" Wind of Office Politics. Like Larry suggests, Timothy shows us that office politics are not necessarily negative. The key, however, is identifying the strategies to deal with the various office politicians including the Snake, Ostrich and Bear. What are those strategies? Well, I strongly suggest you buy the book. It is a business fable and a quick read. I know it can help you develop skills to spend less time dealing with unproductive conflict in the workplace and to create positive results. It is available on Amazon.com.
The continued success of the Central Iowa Bloggers continues to amaze me. This week both Timothy Johnson of Carpe Factum and Matt and Nathan Owen of U.S. Rodeo Supply were featured in Des Moines Register articles. That means, according to my recollection, at least 11 Central Iowa Bloggers have been featured in either the Des Moines Register or The Business Record over the last six months. An amazing feat indeed.
Of course it is one thing to gain publicity but many skeptics ask do you actually get hired because of your blog? Recently a new client told me that he loved the fact I had a blog. He said it was helpful to read information on topics of interest before he made the decision to call a lawyer. He told me the blog helped convinced him that I was an authority on the subject while other lawyers he researched did not make the same showing. And if you wonder about the quality of clients you attract, experience has told me these clients are well-educated and successful. The client referenced here runs a multi-million dollar company. Many of the other clients who have contacted me because of the blog are transitioning from a corporate career to an entrepreneurial career. These people are using the Internet (and specifically blogs) as a search tool for finding a business lawyer.
It always nice to get high rankings and accolades but nothing beats making a positive impact and helping prospective or current clients. The lawyers I know who are successful bloggers have a deep devotion to assisting the public and are willing to give before they receive. It helps to reach out to other lawyers and assist them in promoting their blogs and providing additional resources for your prospective or current clients. I think some lawyers worry that if you send the reader to another site they will never come back. To the contrary, my theory is that if you act as a resource hub for your readers they will come back again and again and again. Be sure to link out to other lawyers. Acknowledging others for their work is a great way to see your law blog grow.
One other thing: my experience tells me you don't have to be flamboyant or catchy. What people really want is information! The most basic posts on this blog are by far the most popular.
If you are a lawyer in the Midwest interested in finding out more about law blogs and other legal technology issues you do not want to miss an upcoming seminar Brett Trout and I have planned for July. We should have the date confirmed by early next week and we anticipate one of the world's most prolific law bloggers will be on hand to present. No, I don't mean Brett - although having the guy who has the sixth best law blog in the world present at your seminar isn't too shabby. Stay tuned for our announcement on LAWpportunities next week for the exciting news.
Ordinarily people say only two things are certain - death and taxes. Well, there is one other thing. If I schedule a baseball practice for my little league teams it will rain.
But it's also raining law blogs in Iowa. The law firm of Huber Book Cortese Happe and Lanz has four new law blogs in their infancy including:
Another blog includes the personal injury and workers' compensation blog by Corey Walker on his impressive injurediowan.com Web site. And you'll notice that rather than feature corn stalks Corey has decided to emphasize the mountain range somewhere around Newton. (If that were only the view from the Iowa Speedway). But seriously it looks like Corey will have valuable information for injured iowans on his blog in addition to the special reports he features on his site.
Barb Diment has also just started her law blog. She will focus on personal injury and workers' compensation as well. It's nice to see Barb isn't afraid to give kudos to other lawyers as her intial post congratulates Roxanne Conlin on her big settlement with Microsoft.
Good luck to all these new Iowa law bloggers. I hope you will reach out and join the conversation with other law bloggers out there. Also, stay tuned for an upcoming law blog and technology seminar through Lawpportunities. It would be great to see everyone there. We expect to schedule it in July.
Brett Rogers of Beat Canvas had an angry post entitled "What is Wrong with America". Brett is disgusted with a justice system that allows a lawyer (and administrative law judge) to sue his dry cleaner for $67 million in damages for a lost pair of pants.
It's cases like this one that upset people and tarnish the image of lawyers and the justice system. I predict justice will ultimately prevail but it is unfortunate our system is often clogged up with cases of this nature. For example, last year I blogged about a man that sued Michael Jordan for $832 million because he was constantly mistaken for his Airness. (The case was ultimately dismissed and it was reported no money was paid).
And although these cases are considered by many as outrageous it is important to point out that neither plaintiff had a lawyer to represent them. Moreover, I take issue with some of the commentary on Brett's post which lumps the famous McDonald's coffee case in the same category. Sadly, there are many misconceptions about that case. If you are interested in reading facts about the McDonald's case you might want to check out this site. You might actually think McDonald's got what it deserved if you know the facts. We know the jury who heard all the facts sure did.
It sure is helpful to see how many view our justice system. I'll remember a lot of the commentary in preparation for my next trial.
Today is the official launch of Iowabiz.com--a content rich, very focused site with amazing Iowa business bloggers all focused on helping your business grow. The site is sponsored by Professional Solutions Insurance Services.
I am excited to be a part of Iowabiz.com as a contributing author. The other authors include:
So be sure to add Iowabiz.com to your blogrolls and feed readers.
One of the biggest challenges for my clients is hiring and retaining talented employees. David Maister has an excellent post on hiring talented people. In his post David expands on the War for Talent is Back by Bob Sutton of Harvard Business Online.
Thanks to Kevin O'Keefe for pointing out the posts. Kevin runs an ever-expanding law blog development and Internet marketing business called LexBlog. His blog is definitely one I check out every day.
One of the more interesting takes from these posts is the feeling that superstars are overrated. I am not sure I necessarily agree. What is overrated is a superstar that has a hard time working within your company's system. But what if your superstar gets along with others, isn't too greedy and fits just right in your company's system? Also, from a start-up perspective having a great business system is necessary but having the "right" people first is the recipe for success. If you don't have the "right" people can you ever develop the great system? As Jim Collins says, "First Who, Then What".
Be sure to catch Des Moines, Iowa patent attorney Brett Trout's blog this week as he takes center stage among law blogs by hosting Blawg Review.
As pointed out by the editor at Blawg Review, Brett's blog is worth reading often and adding to your blogrolls and feed readers if you have not already done so. It is flat out one of the best law blogs in the blogosphere.
Trout's Blawg Review #106 is now available here.
Rush on Business Podcast No. 5 is an interview with Mike Colwell. Mike is the Executive Director of the Business Innovation Zone of Central Iowa (BIZ). BIZ is a new regional business accelerator through the Greater Des Moines Partnership. If you are an entrepreneur in Central Iowa you won't want to miss this podcast.
I encourage you to listen to the podcast to learn how BIZ is uniquely situated to help entrepreneurs in Central Iowa. BIZ will offer low cost mentoring and counseling to businesses of all varieties including advance manufacturing, bio and life sciences and high technology. Mike's focus is on businesses that may have the potential to grow on a regional or national level. To achieve this goal Mike will take entrepreneurs through a five-step process:
Mike also has some very interesting things to say about the Iowa business environment and the qualities that define an entrepreneur.
If you want to reach Mike Colwell to find out more about BIZ please email him at mcolwell@desmoinesmetro.com or give him a call at 515-286-4915.
Listen to the podcast for free!
Tomorrow I have a podcast interview with Mike Colwell on my BlogTalkRadio channel page. Mike is the Executive Director of the Des Moines Partnership's new business accelerator, BIZ. The live interview is scheduled for 4:00 p.m. and will be also be available in podcast format on this blog.
Hope you will listen. If you want to call in to ask a question the number is (646) 652-4878. Mike has some exciting things to share about how BIZ can help build businesses in Des Moines and Central Iowa.
Judge Rosenberg gave preliminary approval today of a $179.95 million dollar settlement in the Iowa consumer class action against Microsoft. Unlike other settlements across the country, Microsoft has agreed to pay cash to consumers as opposed to vouchers for future purchases of software. As I predicted, the settlement is substantial and actually in line with a previous Minnesota settlement from a dollar standpoint.
According to reports, class members are entitled to receive $16 for each copy of Windows or MS-DOS they purchased; $25 for each copy of Microsoft Excel; $29 for each copy of Microsoft Office; and $10 for each copy of Microsoft Word, Works and Home Essential software. Consumers do not need proof of purchase to be reimbursed for up to $200.
Microsoft will provide one-half of the difference between $179.95 million and the unclaimed cash and vouchers to Iowa public schools in the form of vouchers that may be used by the schools to purchase a broad range of hardware products, Microsoft and non-Microsoft software, and professional development services.
There will likely be an uproar over the amount requested by the Plaintiffs' lawyers. Over $75 million in attorney fees and expenses! Microsoft indicated in court today that it objects to the amount of attorney fees requested. The judge will ultimately decide how much is awarded.
For details on how to receive your payment please go to www.iowamicrosoftcase.com. The hearing on final approval of the settlement is currently scheduled for August 31, 2007.
Brett Trout had an interesting post today on the Top Ten Technologies for the Non-Tech Lawyer. In my humble opinion the number one opportunity for the non-tech lawyer is reading feeds. The amount of information available today with nearly one click of the mouse is incredible.
Why should lawyers care? This post illustrates why.
Stephen R. Hampton, Executive Officer of Wage Payment and Minimum Wage for the Iowa Division of Labor offered up the following to explain the changes to Iowa's new minimum wage law in the April 2007 edition of the Iowa Lawyer. The law took effect April 1, 2007.
More information on the new Iowa minimum wage law and a free copy of the poster is currently available under the Announcements column on the Iowa Workforce Development Web site. If you have specific questions regarding the minimum wage laws please consult your employment lawyer.
Filewrapper.com is the latest Iowa law blog to hit the blogosphere by the Des Moines law firm of McKee, Voorhees and Sease. The blog will focus on intellectual property law including patents, trademarks, copyrights, trade secrets and other related issues.
Several representatives from MVS attended our Lawpportunities blawg seminar last November. I am glad to see them online and I wish them success. Stay tuned because Iowa patent attorney Brett Trout and I are planning another blawg seminar soon. We hope to have a world renowned law blogger join us if the dates work out. If you are an Iowa lawyer you will not want to miss it!
A regular reader asked whether I was going to write my annual baseball post. Well, he is in luck and I can actually mix in a little law with it.
If you love baseball and e-commerce law (don't we all?) you will want to check out Blawg Review #103 from Jonathan Frieden of E-Commerce Law. Jonathan includes Des Moines, Iowa patent attorney Brett Trout of Blawg IT in his designated hitter portion of the review. (There is no way Jonathan could have known that Brett can't swing a bat to save his life but fortunately Brett knows his way when it comes to Internet Jurisdiction).
Thanks to Eric Turkewitz of the New York Personal Injury Law Blog for reminding me of the E-Commerce blawg review. Eric has a kind statement regarding my recent comments on Kevin O'Keefe's blog about Chubb Insurance's changing position on providing legal malpractice coverage for blogging lawyers. Looks like Eric is also a baseball fan as he attended the opening day at Shea Stadium.
And while we are on the topic of baseball Indianola native Casey Blake is off to a respectable start with the Indians. Last year, Casey had a torrid start to the season. Casey has historically played his best ball after April and May so it looks like another good season could be in the works. (I must add that Casey kindly donated an autographed jersey this past year to the Rooftop Foundation for its annual golf outing. Thanks again Casey).
Finally, the Pee Wee and Rookie Cardinals of the Raccoon Valley Little League get started this weekend (weather permitting). You never know there may be a future major leaguer among them. Dreams do come true. Casey is a perfect example. Moreover, who would have dreamed Iowan and Drake University grad Zach Johnson would win the Masters? If that doesn't inspire you nothing will.
Doug Mitchell of Moments of Clarity points out that Forbes Magazine has ranked Des Moines as the 4th most desirable place in the U.S. to do business. Doug says it is No. 1 in his book.
Adam Steen of Growth Capitalism writes about the Generation Iowa Commission whose goal is to address the "brain drain" in Iowa.
Hmmm...seems like the Commission could start by sharing the Forbes article with young Iowans.
Drew McLellan of Drew's Marketing Minute recently celebrated the 1,000th comment on his blog. He now has over 600 blogs linking to him. Quite amazing considering his blog is only seven months old.
Drew is just one of the great business bloggers you can read on the Central Iowa Bloggers News River. For example, you can read all about Mitch Matthews and his game 'Q' - recently featured in the Des Moines Register. Or learn some great tips from sensational bloggers such as Mike Sansone and Michael Libbie who have been featured or quoted in the Register too many times to count. And perhaps you may want to check out a budding TV star, Adam Steen. His speed networking events have caused quite a stir here in the Des Moines business community. If intellectual property is your thing you will definitely want to check out the Blawg IT from Des Moines Iowa Patent Attorney Brett Trout.
Who created this news river? None other than the boys at Simplifive. I have a feeling Andy and T.J. are on to big things.
There are a lot of other great bloggers on the river. Be sure to check it out for yourself.
Go to Lawpportunities for a little lawyer humor from the Negotiation Law Blog and the Bar and Grill Singers (all lawyers). All the profits from the proceeds of the CD sales of the Bar and Grill Singers go to the Volunteer Legal Services of Central Texas. It really is laugh out loud funny. Of course, I AM a lawyer.
Wonder why you haven't heard from Lawpportunities for awhile? Well, we have been planning some exciting projects. Stay tuned for details.
Tomorrow I am the luncheon speaker for the Des Moines Sertoma Club. The topic is my Iowa business law practice and how this blog fits into that practice. When I started Rush on Business one year ago I never could have imagined all the great things that would happen to me in just one year from a business perspective.
I have gone from the first blog post of small business incorporation in Iowa to posts that have been included in Forbes.com and the Des Moines Register (sorry I don't think the article appears online anymore).
I received press from The Business Record on multiple occasions and mention from great law bloggers like Kevin O'Keefe, Robert Ambrogi and Dennis Kennedy.
I have been able to strengthen great relationships with people like Iowa patent lawyer Brett Trout (who along the way picked up an award for the sixth best law blog in the world). Thanks Brett for all your help!
I also have met and worked with talented people like Mike Sansone and Sandy Renshaw and developed strong supporters like New York small business lawyer Imke Ratschko (the very first person I noticed other than Brett Trout that actually put my blog on a blogroll).
I even started podcasting with the opportunity to interview experts like Trout, Matt Ashburn, Adam Steen and Joe Cooney.
Along the way I had the good fortune to work with many quality business clients I may never have worked with had I not been blogging. And while I am blessed other lawyers are finding similar success including lawyers that get two to three clients a week from their blog.
So needless to say I am a strong supporter of blogs and the impact blogging can have on a law practice or any business. As Kevin O'Keefe has said to me and quoted on Lexblog,
"Act as if you have a magic wand when creating a blog. What type of work do you want to do? Who do you want to work with? What type of clients do you want to serve? And be careful what you wish for. Blogging can make it happen."
Thanks to the Sertoma Club and Joe Kristan for the kind invitation to speak and allowing me to reflect upon my first year of blogging. I can't wait for the second.
Problem: You need to train your existing employees on new manufacturing techniques but you don't have the necessary funds to complete it.
Solution: Consider a grant under the Iowa Jobs Training Program (260F) through the Des Moines Area Community College Business Resources. A client recently obtained this grant to train his employees. He was able to obtain $50,000 to train workers over a three-year period. To qualify for this program, your business must be engaged in interstate or intrastate commerce for the purposes of manufacturing, processing, assembling products, or conducting research and development. Businesses that provide services in interstate commerce are also eligible. Businesses under the 260F program are required to provide 25% of the training program cost as a cash match.
I recommend checking out DMACC's Business Resources site. Another funding option for expanding companies includes the Iowa New Jobs Training Program (260E). The 260E program is free to participating businesses.
Sullivan & Ward, P.C. seeks a lawyer with 15+ years experience and an established practice to join our business law firm. Sullivan & Ward is an AV-rated law firm located in West Des Moines, Iowa with 14 lawyers. The firm's practice includes representation of many rural electric cooperatives and generating cooperatives throughout the state of Iowa. The firm's lawyers also serve as counsel to many businesses throughout Iowa, including technology and manufacturing companies, retailers, medical professionals and real estate entities. In addition, lawyers in the firm handle litigation, employment law, estate planning and family law.
Sullivan & Ward encourages a work-life balance.
If you are interested in learning more about this opportunity, please contact Mark Landa from our office. Mark's email is mlanda@sullivan-ward.com. All inquiries will be kept confidential.
I had a fun meeting this morning with Mike Colwell, the Executive Director of Business Innovation Zone (BIZ). BIZ is a new regional business accelerator program through the Greater Des Moines Partnership.
What is BIZ and what will it do for Central Iowa businesses?
To find out stay tuned for a Rush on Business podcast highlighting BIZ in a couple of weeks. Mike has graciously agreed to allow me to interview him. He is an interesting guy with a tremendous business background. If you are starting a business, working on your business model or perhaps seeking capital, you won't want to miss it!
Mike confirmed what Adam Steen told me in a recent podcast - there is more money out chasing good business opportunities in Central Iowa than there are good business opportunities. If you have the right business model and plan, Des Moines, Iowa is the right place to be for your business. Of course, 10 minute commutes and good schools are not for everyone, right?
The Iowa Supreme Court Advisory Committee on the Rules of Civil Procedure have proposed amendments to the Civil Rules of Procedure. The proposed amendments primarily address the discovery of electronically stored information and mirror, in large part, the new federal rules concerning electronic discovery which became effective December 1, 2006.
The advisory committee will also be discussing a new Uniform Scheduling Order which will take into account the discovery of electronically stored information.
The Supreme Court Advisory Committee is currently seeking public comments. The deadline for comments is May 1, 2007. The email address for comments is rules.comments@jb.state.ia.us and must state "Iowa Rules of Civil Procedure" in the subject line.
As I have suggested in the past, this will make document retention policies a critical business practice for every Iowa business, large or small.
I enjoyed reading this morning in the Des Moines Register about two fellow Simpson College grads that have managed to build a successful Web site design business without incurring business debt. Andy Priestley and Matt Mann started DWebware shortly after the dot-com bust and have grown their business steadily since that time.
You may also want to check out their blog. They have some helpful posts on how to improve your business online. I thought this post on Iowans Utilizing Internet Technology was particularly interesting.
How many blog posts about the former Playboy playmate actually provide valuable lessons on legal issues? Well, Matt Gardner of Sullivan & Ward, P.C., whose blog provides information on Iowa estate planning and probate, tells us why Anna Nicole Smith's Will is not how you should plan your estate. Matt believes there are some basic lessons we can learn from the Anna Nicole situation:
Looking for more information on trusts and estates? You may also want to check out the Ohio Trust & Estate Blog from Michael Bonasera. One of Michael's most recent posts is planning on the passing of personal property. Thanks for including me on your blogroll, Michael. Keep up the good work.
The Iowa consumer class action case against Microsoft has settled. Check out Des Moines patent lawyer Brett Trout's blog post for details. I'll post more on the settlement at a later date. Details of the settlement are confidential and will be announced this spring after court approval.
I'll bet there are some happy jurors on this Valentine's Day.
It was an interesting evening at the SEMEE event tonight. Several new businesses presented their stories and it was exciting to see so many people in the audience who care about entrepreneurship in Central Iowa. Thanks to the Steens of Transition Capital Management for organizing the event.
The star of the show? Undoubtedly Charlie Anderson. Charlie is a dynamic speaker who sells Guidry's Cajun style pork sausage which is made from his mother's generations-old receipe. After seeing this guy present I know there will be a whole bunch of people running out to the local Hy-Vee to grab themselves a taste. What I enjoyed most about Charlie's presentation is that he told his story from the heart and did not rely on the dreaded powerpoint. The other presenters and many of us in the audience likely learned a thing or two from Charlie in how to capture an audience. Charlie has a future as a motivational speaker once he is done selling pork.
It was also nice to see the guys from US Rodeo Supply demonstrate their online success through the use of NetSuite. Matt and Nathan Owen run their business from a small storefront in Truro, Iowa and have developed quite an online presence including their own blog, Spur'N Conversations.
Finally, I enjoyed the talk from Barbara Rasko of MakeMineWine Magazine. The statistics regarding the growth of the wine industry in Iowa are impressive. I know Governor Chet Culver wants us to become the Silcon Valley of alternative energy but the highlights of the Iowa wine industry are pretty amazing.
Nascar is big business and its biggest star is undoubtedly Dale Earnhardt, Jr. Dale Jr.'s contract is set to expire at the end of the 2007 season and he is now requesting a majority ownership in his father's namesake company, DEI. DEI is run by his step-mother Teresa Earnhardt. Dale, Sr. may have left her in charge but Dale, Jr. appears to be holding the cards.
But can you imagine this happening in any other sport? (Yes, I do consider Nascar a sport).
What about Nascar itself?
In the business world does the owner give up majority ownership to the star salesperson just because they threaten to go somewhere else? And this is business after all.
So after all these examples you might imagine I would advocate that Teresa should send Dale, Jr. packing, right?
Wrong.
Sure his father built DEI. But Dale, Jr. is DEI now. And 49 percent of a substantial sum of money is a whole lot better than 100 percent of a much smaller amount. (Of course, keep in mind Dale, Sr.'s licensing rights still bring in millions). But there is no replacement for Dale Earnhardt, Jr. After all, hasn't she seen the number of beer cans that have been thrown at Talladega over the last couple of years when he hasn't won?
As Tony Stewart said, "DEI without Dale Earnhardt, Jr. is a museum."
I say give him the keys to the garage. He has earned it.
Read what others are saying. Here, here and here.
I have added podcasts to Rush on Business through BlogTalkRadio. The first podcast is an interview with Iowa patent and information technology lawyer Brett Trout concerning the important federal rule changes regarding electronic discovery and how it impacts your business. Brett is the author of Internet Laws Affecting Your Company. As Brett says, bury your head in the sand regarding electronic discovery and you may pay a hefty price. All companies, large and small, must familiarize themselves with the new rules and plan accordingly. If you wait until you get sued, it's too late.
Listen to the electronic discovery podcast by going directly to my BlogTalkRadio Host Page. The podcast is free.
Another upcoming podcast includes an interview with Matthew Ashburn from Sunbelt Business Brokers in Ankeny and Cedar Rapids. Matt has a lot of interesting information regarding how to prepare your business for an eventual sale. The key is good advance planning and it makes a big difference.
I hope you enjoy this new added feature to Rush on Business.
A couple of months ago I received Sirius satellite radio as a gift. I love it except for one constant ad that drives me absolutely bonkers. About every fifteen minutes I hear an ad from LegalZoom, a legal document company. LegalZoom touts that its fees are 85% less than those of lawyers.
First, with most Iowa lawyers the fee comparison is just not accurate. Second, while LegalZoom's ad says it is not a law firm it fails to highlight an important part of its disclaimer pointing out that the legal information on their site is not legal advice and is not guaranteed to be correct, complete or up-to-date. But as they say, it is experience you can trust. Or is it? Be sure to check out this post from a Colorado lawyer who loves LegalZoom because he has landed more business fixing mistakes from LegalZoom than he would have earned had he done the work in the first place.
One of the craziest things LegalZoom offers is a prenuptial agreement. First, if you have enough money for a prenuptial agreement you can afford a lawyer. Second, a prenuptial agreement is one area of law that if a mistake is made it could cost you - I'd say approximately half your assets. Let's just say I have trouble believing any attorney worth his or her salt - including those "top attorneys" who founded LegalZoom - could in good conscience recommend a person use a legal forms company for a prenuptial agreement. I also wonder what my friend Brett Trout thinks about their offers on patents, trademarks and copyrights.
Use LegalZoom if you must but I highly recommend talking to an attorney before you go that route. You might be surprised by the expense comparison, and even if the cost is slightly more, the legal advice is usually worth it. As the saying goes, you can pay now or pay later. The choice is up to you.
On December 31, 2006, I wrote a post on how Blog Monitoring is a Top Trend for 2007. Today's Des Moines Business Record cover story is Exhibit A. The story recounts how smart companies are listening to bloggers and dealing quite effectively with negative publicity. It seems Central Iowa blogger Tom Vander Well recounted on his blog about an unfortunate customer service experience he had with the Geek Squad, a subsidiary of Best Buy. Needless to say, Tom didn't have good things to say about Best Buy or the Geek Squad.
So what happened next?
Geek Squad founder, Robert Stephens, emails Tom and tells him, "We shall not rest until your problem is addressed." Now that is service! But also very resourceful. If Robert Stephens had not been monitoring RSS feeds that never could have happened.
Why should lawyers care? First, monitoring blogs and Web sites through RSS feeds give you INSTANT KNOWLEDGE. Now you are able to know when someone has said something good or bad about your law firm, your competitors, your clients and legal developments. Smart companies involved in litigation or disputes (i.e. Mediacom and Microsoft) are monitoring blogs and better understand how to deal with public opinion.
But here is the best part (this is where YOU may earn a client for life and you don't even need to be a geek). You have the perfect opportunity to show that you CARE. If something appears on the Web about your client or if there is something that interests or impacts them you have the opportunity to forward it to them in a record amount of time. It is conceivable that you may know your client has been sued before the client knows. Do you think that would help you to keep a client for life?
You don't need to blog - just start reading feeds.
Microsoft has renewed its attacks against Roxanne Conlin in the Iowa consumer class action case. This time Microsoft wants the right to question the named plaintiffs about their connections to Conlin before the lawsuit. Apparently Microsoft believes Conlin recruited these plaintiffs to file the lawsuit. According to the Des Moines Register, Conlin acknowledges she was friends with some of the plaintiffs before the lawsuit began.
Judge Rosenberg had previously ruled that Microsoft could not ask the individual plaintiffs about their connections to Conlin. Microsoft now claims Conlin and her co-counsel opened the door when they told the jury the plaintiffs were "just regular people". A ruling on this issue is expected soon.
Earlier in the case Microsoft attempted to disqualify Conlin alleging she had engaged in misconduct while obtaining certain documents. Judge Rosenberg said there was no misconduct by Conlin and allowed her to stay in the case.
Recruitment by plaintiffs' counsel would be inappropriate and could raise questions about whether the class is properly certified. On the other hand, there is nothing that prevents a lawyer from representing a friend. Many lawyers represent friends or acquaintances. But rarely do cases involve $300 million in damages. The stakes are high and Microsoft is pulling out all the stops.
UPDATE: Judge Rosenberg ruled in favor of Conlin and the plaintiffs. Microsoft is not allowed to question the named plaintiffs about their connections to Conlin before this lawsuit. That's strike two in misconduct allegations against Conlin.
Big news today. A federal grand jury has indicted four people on fraud and conspiracy charges in the CIETC scandal and the former CIETC Chief Operating Officer, John Bargman, apparently pleaded guilty to charges in exchange for testimony in the case.
The four indicted include:
The indictments come 10 months after the scandal at the job training agency broke. The income received by CIETC management is staggering and according to one of my criminal defense buddies it is no surprise federal authorities filed charges. This has been brewing for months.
If you are a volunteer board member of a state or other agency you better make sure you pay attention and provide appropriate oversight. Volunteer board members can no longer serve only as a rubber stamp. Will indictments like this have a chilling effect on the willingness of people to volunteer for these boards?
If you are a lawyer representing an individual you better start asking your clients whether they have a MySpace, Facebook, or other social networking Web site. A lawyer I know ended up on the short end of the stick in a pre-trial hearing when opposing counsel pulled out pictures and comments from a client's MySpace site during a hearing. Needless to say, the pictures and comments were less than flattering for the client.
Whether you have a personal injury, employment, family law or other case be sure to ask the client in your initial interview whether they have a social networking Web site (or whether family members or friends may have posted about them on the Internet). If so, be sure to visit the site to learn what has been posted. If you are a client, be sure to tell your lawyer about any of your personal Web sites. You may think you are safe because only your "friends" have access. Keep in mind that your friends are one subpoena away from being forced to testify against you.
Ignore MySpace, Facebook, and other similar sites at your peril.
See this related post on employer background checks.
The Plaintiffs have now set up a Web site to post the public records in the Iowa consumer class action against Microsoft. Just go to www.iowaconsumercase.com. The site currently has transcripts available. Exhibits and further information will be available later this week. A permanent Web site is expected to be set up during the week of January 21st. Judge Rosenberg has ruled that a document may be posted three days after it is admitted into evidence.
The Iowa consumer class action against Microsoft resumed this week with testimony from the first live witness in the trial, Ronald Alepin. Alepin is a computer consultant and a technology advisor with MOFO in San Francisco. Groklaw has some interesting information about Alepin and his past dealings with Microsoft.
Alepin has been called to describe the tactics allegedly used by Microsoft to thwart and crush competitors. A potentially damaging part of Alepin's testimony is his accusation that Microsoft's "innovations" are really just Microsoft's attempts to copy others' programs and catch up with other developers.
Judge Scott Rosenberg did limit Alepin's testimony in some regard. Alepin could not offer opinions on whether Microsoft's conduct was anti-competitive, nor could he offer opinions on other legal matters involving antitrust cases against Microsoft. Alepin also could not testify on "what would have been" had Microsoft acted differently.
The opening statements have ended in the Iowa consumer class action against Microsoft. The Plaintiffs' side of the evidence began on Friday with the Plaintiffs playing a video taped deposition of Bill Gates from 1998. The deposition was taken during the government case against Microsoft back in the 90s.
Sources have said Gates was "evasive" and "unresponsive" during this deposition. It is widely believed the deposition is not exactly the Microsoft CEO's finest hours.
It is expected that Gates will testify live next year during the defense portion of the case.
Bloggers should take note of this post I found on Kevin O'Keefe's blog, Real Lawyers Have Blogs.
The Washington Post reports that the Federal Trade Commission ruled on December 11, 2006 that companies engaging in word-of-mouth marketing, in which people are compensated to promote products to their peers, must disclose those relationships. The Post article made it clear the ruling applied to both the endorser and the company paying for the endorsement.
Companies that fail to disclose such relationships may be held liable for deceptive advertising practices.
O'Keefe has an interesting take that he does not believe the ruling will have much impact on lawyer blogs. But he points out that lawyers should be careful not to engage in an arrangement where a blog touts the lawyer's services through a paid PR campaign and not disclosed.
The Plaintiffs, represented by Roxanne Conlin, finally ended the longest opening statement in Iowa trial history (I am joking but I believe it to be true) in the consumer class action case against Microsoft. Microsoft's lead trial attorney, David Tulchin of Sullivan & Cromwell said he felt like he had waited a long time to give his opening statement and he "probably wasn't waiting all that patiently at times."
Tulchin said the real issues are not complicated.
"This case is about the quality of the products. It is about value. It is about prices, and it's about causation. Was there anything from the government case or the allegations made here by the Plaintiffs that caused the market to be so different from what it otherwise would have been that prices would have been dramatically different from the very low prices that Microsoft charged?"
He said Plaintiffs experts have created an imaginary "but-for" world; that is, a world that they say would have existed but for the conduct they claim was wrongful.
Tulchin also touched on the history of Microsoft from the very early days when Bill Gates and Paul Allen set out to improve the Basic language for the first minicomputer.
"And Mr. Gates' idea right from the start, right from the start in the 1970s was to charge a low price for software, a low price with the hope--with the basic idea that a low price would generate high sales. It is not a new idea. . .it goes back to Fredrick Maytag in Iowa with the washing machine. Make a good product, keep the price low, and you'll sell lots of them and do well."
It sounds as though Tulchin will continue his opening over the next few days. It appears as though he plans on hammering the Plaintiffs for providing only "little snippets" of data or documents for the jury to see which do not tell the whole story. It is apparent Tulchin is a fine lawyer. His bio indicates he has won dismissals with prejudice in 20 major antitrust actions against Microsoft, and victories in all seven appeals he has argued for Microsoft in the United States Courts of Appeals.
This is shaping up to be an interesting trial on so many fronts. Best of all, it is practically a class on juror persuasion. Stay tuned for more as the trial progresses.
The Plaintiff continued with their sixth day of opening statements as the week ended. Roxanne Conlin is expected to turn over the opening to her co-counsel soon for a discussion regarding damages. According to reliable sources, Microsoft does not plan on taking nearly as long to lay out their side of the case.
It is interesting that Conlin has taken so long in delivering her opening statement. It is widely believed people are used to getting information in short bursts from television, computers or other technology and therefore their attention spans as jurors is much shorter. Most lawyers would say you need to keep trial shorter, not longer. Yet many fantastic trial attorneys, such as Gerry Spence, believe it is most persuasive to tell the entire story in detail - even if that means taking hours or days to complete an opening statement.
So far Conlin has focused on the history of the computer industry and her stories of nine companies she alleges were injured or destroyed by Microsoft's conduct. She has referred to emails and lots of internal memos in a very. very detailed manner. At this point I am told six months is an underestimate for this trial.
The new federal electronic discovery rules became effective December 1, 2006. (See this earlier article for a more detailed description of the rules and the amendments.) Consulting companies appear to be hitting this hot and heavy as several of my clients have received marketing materials offering to assist with their electronic discovery needs. Many clients, especially those who have not been involved in federal litigation, have questions about electronic discovery and the impact of the new rules on their businesses.
In reality, electronic discovery of documents has been around for several years. The new rules have placed more emphasis on electronic discovery. In federal court litigation, the parties will now be required to address electronic discovery right up front in any lawsuit. In the past there were times where courts might have had questions about what was discoverable and what constituted a document for production purposes. Now it is unquestionable that all kinds of electronically stored information are discoverable including emails, spreadsheets, powerpoints, documents, etc. The parties will need to cooperate in order to exchange electronically stored information in a usable format. The organization of such information will take on a greater importance under the new federal rules.
A critical component of the rules is that if you anticipate ligation could occur or if litigation has already occurred you have a duty to preserve electronically stored information. This will help you avoid problems such the case described in this article.
This also brings to the forefront the need for a document and email retention policy. Many clients ask how long they need to keep certain documents. Unfortunately there is no magic formula but the answer varies with the industry and practices of each client and depends on the type of documents. The new rules do not require a document retention policy but recent cases involving the destruction of documents place a strong emphasis on having such a policy.
Plaintiffs' attorney Roxanne Conlin has decided not to call Bill Gates and Steve Ballmer in her case-in-chief, contrary to her earlier strategy. Conlin reconsidered her position after Judge Rosenberg ruled that Microsoft could question Gates and Ballmer directly after Conlin rather than waiting until Microsoft presented its side of the case. Instead, Conlin will now show the entire videotaped deposition of Gates taken during the federal antitrust trial in the late 1990s.
It could be a good move by Conlin but I think it is a bit unusual for her to be changing course after her initial announcement. Sounds like a little indecision on her part. It's possible the move hurts Microsoft a little bit because I am sure the company's lawyers would have liked to question Gates right after Conlin's examination in order to rehabiliate him. The video does not show Microsoft's CEO in the best light but it was taken several years ago. Will jurors think Conlin has something to hide by not calling him directly?
At this point, opening statements continue on. Conlin's opening is expected to last at least a few more days.
The Iowa consumer class action case against Microsoft has officially begun. Roxanne Conlin began her opening statements Friday. Her case will include nine separate stories about how Microsoft has undercut competitors and acted illegally. She will focus not only on IBM and Linux but also lesser known companies such as Go Computers and Acer Co. Conlin's opening will actually take several days.
Microsoft lawyer, Rich Wallis, says the anticompetitive activites Conlin complains about are all in the past. He says the company has not violated the law since it agreed to a consent decree with the federal government in 1999.
Check out this Des Moines Register story written by David Elbert for the details.
I am speaking today at the Iowa State Bar Association eCommerce Seminar on the use of RSS feeds in today's law practice.
The acronym RSS stands for a couple of things: Really Simple Syndication or Rich Site Summary. RSS is a format for delivering regularly changing Web content. (See www.whatisrss.com). Many news-related sites, blogs and other online publishers syndicate their content to whoever wants it. See the orange icon on the right side of this blog? That is an RSS feed. (Please feel free to subscribe to mine).
Why Should You Care? RSS solves a problem for people who regularly use the Web. It allows you to stay informed by receiving summaries from the latest sites you are interested in. You SAVE TIME because it is no longer necessary to visit each site individually. You ensure your PRIVACY and keep your email UNCLUTTERED because you are no required to sign up for an email newsletter.
It also gives you a couple of key advantages as a lawyer. First, it gives you INSTANT KNOWLEDGE. Now you are able to know when someone has said something good or bad about your law firm, your competitors, your clients and your industry. But here is the best part (this is where you may earn a client for life). You have the perfect opportunity to show that you CARE. If something appears on the Web about your client or if there is something that interests or impacts them you have the opportunity to forward it to them in a record amount of time. It is conceivable that you may know your client has been sued before the client knows. Do you think that would enable you to keep a client for life?
For more on RSS take a look at Dennis Kennedy's blog post and an excellent article on the subject written by Kennedy and Tom Mighell.
This post by Mike Sansone of Converstations makes the case for RSS feeds so effectively.
The opening statements in the Iowa Mircosoft litigation were delayed today. Pre-trial instructions took hours. Check out Brett Trout's blog. He sat in on the trial today.
Here is something to keep in mind. If opening statements are tomorrow, I'll bet that Roxanne Conlin takes all the day and more to give her opening. The jurors will go home having heard only the Plaintiffs' side of the story the first weekend. The only way this doesn't happen is if Judge Rosenberg dismisses the jurors for the day after the remaining instructions. First impressions are lasting impressions.
Opening statements in the Iowa consumer class action case against Microsoft begin November 30, 2006. Several readers each day have been hitting this blog reading posts relating to the case. To make it easier for readers I have added a Microsoft Iowa Litigation category on the right side of the blog. This should make it much easier to identify all the posts related to the litigation.
I will cover important highlights of the trial as it proceeds. The trial is expected to last six months. Of recent note, it is my understanding that Judge Rosenberg has ruled Bill Gates and Steve Ballmer will only be required to testify once in the trial. The Plaintiffs' attorney, Roxanne Conlin, had wanted to complete her case-in-chief before allowing Microsoft attorneys the opportunity to question Gates and Ballmer fully. This is helpful to Microsoft as it allows the defense to complete any necessary rehabiliation of these two key witnesses before she completes her side of the case.
On the other hand, Conlin won a procedural victory in that she is able to present deposition testimony of Gates from 1998. This infamous deposition does not protray Gates in the best light and is considered by many as damaging to Microsoft. Conlin also gets to present a mountain of emails, many of which are considered damaging to Microsoft. For the jurors sake, let's hope the parties only present a portion of the 25 million documents that have been gathered.
Microsoft will counter with the many innovations the company has created and how Gates and Co. positively transformed the computing world.
The Plaintiffs are asking for over $300 million in damages so there is no question this case will be hotly contested. It has been in the court system for nearly seven years and right now I wouldn't doubt it could go for seven more, no matter who wins at trial.
For those interested in more on the Microsoft case you may want to check out Iowa patent lawyer Brett Trout's blog, Blawg IT. Brett has periodic articles on the case and always has an interesting take.
When you go to court you are putting your fate into the hands of twelve people who weren't smart enough to get out of jury duty. - Comedian Norm Crosby
The jury in the Iowa consumer class action case against Microsoft has been picked. (Of course, these jurors should be commended for their service and the joke above is not intended to reflect upon them in any way. These jurors are making a sacrifice and I admire anyone who makes such a commitment to upholding our system of justice). The jury consists of seven men and five women. In a typical Iowa state civil court case you would normally only have eight jurors. Several of the jurors have apparently purchased Microsoft products which makes them eligible to receive damages in the event the jury decides against Microsoft. I seriously doubt that will be much of a factor.
Opening statements are expected to begin November 30th. I'll continue to keep readers posted as the case moves forward. It should be an intriguing but lengthy trial. (You gotta feel for those jurors). It is expected that both Bill Gates and Steve Ballmer will testify live in the case.
The Plaintiffs are asking for over $300 million in damages. The Des Moines Register also reported that both sides have hired PR firms to handle the publicity in the case. I will enjoy seeing how that plays out giving the number of blogs that will likely cover this trial.
So tell me your opinion? How do you feel about this case?
The Technology and Marketing Blog has an interesting analysis of the Barrett vs. Rosenthal case handed down by the California Supreme Court on November 20, 2006. In its ruling, the court decided whether "distributors" of content have immunity under 47 USC 230 for Internet publications.
A major point in the analysis:
No one is liable for other people's content online--period (except for claims not covered under the statute--IP, federal criminal law, ECPA).
The author, Eric Goldman, points out that "active involvement in the creation of a defamatory Internet posting would expose a defendant to liability as an original source." But in the Rosenthal case the defendant forwarded content without modification. Accordingly, (at least in California) Plaintiffs that claim they were defamed in Internet postings may only seek recovery from the original source of the statement.
The Rosenthal case appears to protect bloggers who link to articles or republish content without modification but another case in the District of Columbia threatens to go in a different direction. In general though it is still a good idea for bloggers to check out the accuracy of posts before linking or republishing content.
Last week was a momentous week as Brett Trout and I concluded the first ever full-day CLE devoted to lawyer blogging in the country through LAWpportunities. We were fortunate to have been joined by blogging experts Mike Sansone and Sandy Renshaw. Mike delighted the crowd with his tutorial on RSS feeds. Any lawyer not using RSS feeds in their law practice is missing out. If you are a lawyer interested in harnessing the power of RSS feeds you may want to check out the Iowa State Bar Association eCommerce seminar on December 1st where I will be talking about how RSS feeds may gain you a client for life.
Prior to their appearance at our blogging seminar, Mike and Sandy joined several other Iowa bloggers (Drew, Tim, Mike, Tom, Mitch, Doug and Brooke) in welcoming Starbucker to Iowa Blogging Central (aka Panera U in West Des Moines). Now Sansone is probably the biggest Panera fan I know and Starbucker obviously has a certain affinity for a cup of latte now and then. But fellas your favorites could use a little help.
First, Starbucks reported earlier this month that it had lost the personal data of 60,000 employees and contractors when two laptops turned up missing. It is bad enough that the personal data included names, addresses and social security numbers but that is only part of the story. The rest of story is that the laptops were missing from . . . a closet! Who stores computers containing confidential information in a closet? (Well, I guess Starbucks actually). Anyway, after a two month investigation did not turn up the laptops Starbucks has offered the employees and contractors free credit protection to guard against identity theft. Also, Starbucks already implemented a policy whereby confidential information such as social security numbers are not allowed on laptops and other mobile devices but these laptops unfortunately contained the information before the policy was in place. No word on whether Starbucks has implemented a policy prohibiting the storage of laptops in closets.
Second, Panera had its own little legal blunder. Panera had the exclusive right to sell sandwiches in a Massachusetts mall. The owner of the mall then signed a lease with Qdoba Mexican Grill. Panera sued to enforce the exclusivity portion of their lease. The court ruled that a burrito is not a sandwich. The decision came down to the difference between two slices of bread versus one tortilla. The judge also concluded that a sandwich is not commonly understood to include burritos, tacos and quesadillas which are typically made of a single tortilla stuffed with a choice of meat, rice and beans. (No wonder the guys at Pancheros looked at me a little funny when I ordered a sandwich with steak, rice, beans, cheese and salsa on tortilla. I guess the judge was right).
Only in America!
The Iowa consumer class action case against Microsoft begins tomorrow, November 13, 2006. It is anticipated it may take weeks to pick the jury and the trial itself could take several months. The jurors will be expected to complete a 31-page survey before the questions even begin. Surveys are often used by Plaintiffs' attorney, Roxanne Conlin, as a part of her jury selection process. Having the survey though will help both sides. The lawyers are able to learn a great deal more about prospective jurors and ultimately their biases.
The jury pool for this case is substantially larger than your ordinary case. You generally have about 24 prospective jurors in the jury pool of a typical civil case in Polk County, Iowa. In this case, approximately 450 people will be a part of the jury pool.
The case involves involves allegations that Microsoft used anti-competitive practices to drive up the cost of its Windows operating system, as well as its Microsoft Office, Word and Excel programs. Potential members of the class include any person, business or organization that bought those programs. About $450 million is at stake.
The plaintiffs were already dealt a significant blow in pre-trial motions when Judge Scott Rosenberg ruled the plaintiffs could not proceed with a "loss of innovation" theory for damages.
If you are interested in learning more about the issues in the case you may want to check out Des Moines patent lawyer Brett Trout's podcast interview with David Lawrence.
Stay in touch for more as the trial proceeds.
A $1.888 million dollar judgment in favor of a Delaware bankruptcy trustee stresses the importance of careful consideration before deleting electronic records from your company's computer system. In the case of In re Quintus Corp., 2006 WL 3072982 (Bankr.D.Del.Oct. 27, 2006), the Bankruptcy Court of the Delaware District imposed a penalty of summary judgment against a party the Court found intentionally deleted documents, including electronic records, that would have been harmful to the party's position in the case.
Electronic Discovery Law Blog has a complete summary of the case and a link to the opinion.
If you are interested in learning more about electronic records retention and discovery issues you may also want to check out the Fios white pages and articles on electronic discovery. Legal consultant Dennis Kennedy also has an excellent electronic discovery resources page.
As pointed out in an earlier post, the new federal electronic discovery rules become effective December 1, 2006. Fed. R. Civ. P. 26, 33, 34, 37, and 45 are being amended to take into account the importance of electronic records in the discovery process.
Rush Nigut and Des Moines patent attorney Brett Trout are featured in an article this week in the Des Moines Business Record for their upcoming YBlawg seminar. According to LexBlog's Kevin O'Keefe, the seminar is believed to be the first full-day CLE devoted to lawyer blogging in the country.
The location of the seminar is the Hilton Garden Inn in Johnston on November 10, 2006. The seminar begins at 8:15 a.m. and is pre-approved for 7.0 hours of CLE including 1.0 hours of ethics.
Click here for our easy online registration and an outline of the seminar. Just mention that you saw the article in the Des Moines Business Record and you can attend for the early bird rate of $249.00.
In pre-trial rulings, Polk County District Court Judge Scott Rosenberg has thrown out the "loss of innovation" damage claim alleged against Microsoft . Plaintiffs' counsel, Roxanne Conlin, had alleged that Microsoft's market dominance prevented other software companies from developing products that competed with Microsoft's web browser Internet Explorer and other Microsoft products.
The Judge sided with the plaintiffs' on seven other pre-trial motions but the ruling on the loss of innovation theory appears to be a significant blow to the plaintiffs' case.
Thanks to Des Moines Patent Attorney Brett Trout for the heads up.
See also a Des Moines Register article on the ruling.
Next Tuesday we will elect a new Governor in Iowa. Will it be Chet Culver or Jim Nussle?
Be sure to check out both sites and examine their positions on Iowa business. Culver's site includes a 10 point plan to promote Iowa small business, entrepreneurs and access to capital. Nussle's site includes a plan to create jobs and grow Iowa's economy.
So examine the issues and make sure to vote next Tuesday, November 7th.
Judge Scott Rosenberg delivered yet another blow to Microsoft in the Iowa consumer case when he refused to limit the size of the Iowa class-action lawsuit. Microsoft had argued the interests of volume buyers were not the same as consumers who made individual purchases. Microsoft also argued that the plaintiffs could not show "that all class members were injured by the alleged anti-competitive conduct".
Judge Rosenberg ruled that the Iowa Supreme Court already had addressed the issues raised by Microsoft. Rosenberg said the Iowa Supreme Court has ruled that as long as there was a "common nucleus of facts" the plaintiffs group can be broad-based and include different classes of plaintiffs.
The lawsuit is set to go to trial November 13, 2006. Microsoft had recently tried to have plaintiffs' attorney, Roxanne Conlin, removed from the case. Judge Rosenberg denied that motion as well.
Interested in more about the defense of class actions? Check out the Class Action Defense Blog.
Here is an update to the ongoing Iowa consumer case against Microsoft:
Polk County, Iowa District Court Judge Scott Rosenberg has ruled that Roxanne Conlin is allowed to try the case against Microsoft. Microsoft had filed a motion attempting to exclude Conlin on the basis that she had engaged in misconduct when she persuaded a Hewlett-Packard technician to give her internal documents from another case. Judge Rosenberg has found "no unethical or improper conduct by Ms. Conlin".
So it's game on. Trial is set for November 13, 2006.
Iowa patent and technology lawyer Brett Trout recently posted about a couple of cases where bloggers were hit with big verdicts. One of the verdicts included $11.3 million awarded to a Florida woman after being called a "crook", "con artist" and a "fraud" in an online post.
This just points out that businesses must look before they leap with blogs. Blogging raises a whole host of issues incuding copyright infringement, privacy issues and defamation. I recall an instance on the Web where a former employee blasted an employer and then the employer openly discussed on the Web the circumstances of the employee's departure. The employee could have faced a defamation claim and also a claim for divulging trade secrets of the company regarding pay and product information. On the other hand, the employer could have faced privacy claims for sharing the circumstances of the employee's termination.
Companies considering a corporate blog should consider seeking advice from a lawyer with a good understanding of technology and blog law.
Often blogging is similar to email. It is often a less formal method of communication and some bloggers don't think it through before posting their words for the world to see. So look before you leap when it comes to blogging.
The Iowa Association of Business and Industry has published a survey indicating Iowa's legal climate is hurting job growth. The survey also states that many Iowa business leaders are dissatisfied with Iowa's legal climate and believe it is costing the state jobs because of competition from other states.
The survey seems to contradict the U.S. Chamber of Commerce survey which said Iowa ranks fourth in the country in judicial fairness. Iowa has ranked in the top five for each of the last three years.
So which is it? Well, there is no question businesses (in Iowa and all states) are devoting more time than ever to liability concerns and defending themselves against lawsuits. However, my experience with clients leads me to believe Iowa's judicial system is as good as any state. In fact, certain businesses I know could tell you horror stories about the judicial systems in other states with so-called "legal reform". That's not to say we can't improve though and we should continue to look for ways to improve our business climate. I am just not convinced the major problem is Iowa's legal system.
The six-year old Iowa private antitrust class-action against Microsoft is finally heating up. The case is set for trial November 13, 2006 but yesterday a hearing was held on Microsoft's allegations that Plaintiffs' lawyer, Roxanne Barton Conlin, engaged in misconduct when she persuaded a Hewlett-Packard technician to give her internal documents from another case. Microsoft is asking that Conlin be removed from the case.
Conlin's lawyer, Mark Tripp of the Bradshaw Law Firm, said Microsoft's lawyers are on an ethical witch hunt in order to keep Conlin from trying the case because they don't want to face her in court. He also argued the information the technician had was insignificant.
The lawsuit seeks up to $450 million for Iowa consumers upon the novel legal theory of "lack of innovation". Conlin contends that Microsoft's anti-competitive activities during the 1990s killed many innovations that never reached consumers.
Pundits have their doubts about whether the lack of innovation theory has any merit but don't count Conlin out. She has a number of large verdicts to her credit including a big win over UPS where she hit them for over $80 million. The National Law Journal has named her as one of the Top Ten trial lawyers in America.
Frankly, when I first heard about this case I had my doubts. Could it be that Bill is afraid to take the stand after all?
Lawpportunities, a joint venture between Des Moines lawyers Rush Nigut and Brett Trout, is receiving national attention for its legal blogging seminar coming up this November 10th in Johnston, Iowa. According to LexBlog's Kevin O'Keefe, Lawpportunities is hosting the country's first full-day CLE devoted to blogging. LexBlog is one of the country's leading providers of law blogs. O'Keefe describes the seminar as "[g]old for lawyers needing mandated CLE credits while learning something that can grow their business."
So if you are a lawyer, be sure to sign up for the YBlawg seminar today.
Justice Marsha Ternus Named Iowa's First Woman Chief Justice
Justice Marsha Ternus has been named Iowa's First Woman Chief Justice. She takes over for the departing Louis Lavorato. Former Iowa Governor Terry Branstad appointed Ternus to the Court in 1993. She earned her law degree, with honors, from Drake University Law School in 1977.
Before joining the Iowa Supreme Court Ternus worked for the Bradshaw Law Firm in Des Moines. She practiced as insurance defense lawyer until her appointment in 1993.
Ternus has an excellent reputation among Iowa lawyers for her fairness and intellectual integrity. She will make an excellent Chief Justice.
New Iowa Supreme Court Rule Requires Lawyers to Protect Clients' Personal Information
A new Iowa Supreme Court rule requires lawyers to protect clients' personal information in an effort to combat identity theft. Rule 1.422(1)(a)(2) of the Iowa Rules of Civil Procedure states it is the responsibility of counsel and the parties to ensure that protected information is not included or redacted from court documents. The Clerk of Court will not review documents or materials to make sure personal information has been omitted or redacted.
Protected information includes:
1. Social security numbers.
2. Financial account numbers.
3. Personal identification numbers.
4. Other unique identifiers.
If a social security number is required only the last 4 numbers should be used. If financial account information is required only incomplete account numbers should be included.
Counsel is not required to omit or redact protected information from materials or cases deemed confidential by the Iowa Supreme Court: however, omission or redaction is required in proceedings that are initially confidential but which later become public such a divorce proceedings.
A party may also omit other personal information unless it is material to the proceedings or unless disclosure is required by law including:
a. Other personal identifying information such as driver's license numbers.
b. Information concerning medical treatment or diagnosis.
c. Employment history.
d. Personal financial information.
e. Proprietary or trade secret information.
f. Information concerning a person's cooperation with the government.
g. Information concerning crime victims.
h. Sensitive security information.
i. Home addresses.
j. Date of birth.
k. Names of minor children.
The new rule is effective November 1, 2006.
_________________
Rush on Business celebrates its 100th blog post in the next post.
Employers Must Protect Employees' Social Security Numbers
In a recent newsletter update from the Krupin O'Brien employment law firm, attorney Natalie Cantor Gros wrote an informative article regarding the importance of employers protecting the Social Security numbers of employees.
The article points out that a Michigan employer paid $275,000 settlement to group of 911 operators whose Social Security numbers were stolen when a labor union employee brought home documents containing Social Security numbers and the employee's daughter use the information to make unauthorized purchases.
Michigan has passed a law designed to protect employees' Social Security numbers and other states are following. With about 9 million victims of identity theft in 2005 it is critical that employers take adequate steps to protect employees' Social Security numbers.
Employers should be particularly careful of allowing employees to have such confidential and private information on laptops. I have read over and over again about the loss of sensitive information on stolen laptops. Will employers ever learn?
John Wellman Remembered: The Consummate Lawyer
Upon my return from vacation I was saddened to learn John Wellman passed away last Friday. Wellman, a long-time public defender, was blinded in a hunting accident at the age of 17. He overcame his adversity to earn a law degree from Drake University and a Masters in Law from Yale. He was 64.
His son Gregg was my position coach at Simpson College. Wellman attended our games and later told me at the courthouse that he always enjoyed "watching" our team. He was one of the lawyers in the first trial I watched at the courthouse. He represented an obviously guilty man who had been caught on video tape robbing the cash register at a convenience store. Wellman joked with the prosecutor out of the presence of the jury that he would simply argue the man was trying to put the money back and that the camera had it wrong.
Guilty or not John Wellman represented his client to the best of his ability. He used his laser-like ability to pinpoint deposition testimony to impeach a witness whose trial testimony conflicted with previous statements under oath. Wellman did not refer to the deposition itself. Instead he recited the page and line immediately off the top of his head without missing a beat. An amazing gift indeed.
He delivered his closing as he leaned on his walking stick. Methodically explaining in plain language why the jury should acquit his client. Nothing fancy but a brillant closing nonetheless.
I worked in a case against a Plaintiff's class action lawyer that told me with regret that he did not have any "real" clients. I know Wellman had no such regrets. As explained in the book, Season of Life, Wellman was truly "a man built for others."
He lived with integrity and not only when it was convenient to do so. Always.
He sought justice. Because it is often hidden.
He encouraged the oppressed because they are always discouraged.
He made a great impact on the world because he asked the simple question: "What can I do for you?"
John Wellman did not worry about getting the biggest bank account or the fanciest car. (I guess he could not have driven the car anyway). He concentrated on what truly mattered. I am better for knowing him and I thank him for his fine example of what a lawyer should be and more.
Employers Face Overtime Lawsuits
According to Business Law Today and the Washington Post lawyers for big businesses around the country are working overtime to protect corporate giants facing lawsuits for failing to pay overtime to rank-and-file employees.
As discussed in an article by Stephen Franklin of the Chicago Tribune, cases against State Farm Mutual Insurance and Allstate Insurance led to payouts of over $100 million for each.
This is also a significant problem for smaller businesses. In my experience it is not uncommon for small employers to misclassify employees. The U.S. Department of Labor has upped its enforcement of federal overtime standards. According to the Business Law Today article, the department saw a 26 percent increase in back wages won for workers and an 11 percent increase in the number of workers it was able to help last year.
A human resource audit can help you determine whether you are classifying workers properly.
Did you know that several cities including Des Moines,Iowa now have laws or ordinances prohibiting workplace discrimination based on sexual orientation? Even though no federal prohibition exists, there is a trend toward enacting legislation in this area.
Under these laws, it is generally unlawful to use sexual orientation to:
Refuse to hire a job applicant.
Terminate an employee from a job.
Discriminate in compensation or in other terms or conditions of employment.
Print, circulate, or use any discriminatory statement, advertisement, publication, or job application form.
Make any inquiry that is discriminatory in connection with prospective employment.
If an employee or a job applicant feels that his or her rights have been violated and files a lawsuit, the possible damages a company may face include payment of back pay, reinstatement of the employee, a training requirement to eliminate the discriminatory practice, and payment of damages for emotional distress.
Be aware of your local regulations. Although discrimination based on sexual orientation is not yet prohibited by federal legislation, this is a hot issue. You may need to carefully consider your policies if you have one location in Des Moines and the other outside Des Moines. Do you want or need two policies that are separate and distinct regarding sexual orientation? However, even if this local regulation does not apply to your company, it is prudent to recognize this trend to avoid claims of wrongful termination in violation of public policy.
If your company is in Des Moines or another city that has a similar regulation you should review your Employee Handbook and any other written policies regarding harassment and discrimination. These policies may need to be re-written to include sexual orientation as a protected class. This may include several sections and policies within your Employee Handbook such as Equal Employment Opportunity, unlawful discrimination and harassment, and personal appearance policies. You should also review any documents that include your Equal Employment Opportunity policy such as employment applications, Affirmative Action plans and employment advertisements for open positions.
According to an annual survey released by the U.S. Chamber of Commerce, Iowa's legal system ranks No. 4 in the nation. Iowa has ranked in the top five each of the last three years.
The five top states for overall legal fairness according to the survey are Delaware, Nebraska, Virginia, Iowa and Connecticut.
The survey shows that Iowa is a great place to do business. New business owners from Iowa often ask me whether they should incorporate in another state. Unless there are compelling reasons to do so I generally encourage them to incorporate right here in Iowa. Another major reason to incorporate in Iowa are the low fees necessary to maintain a corporation in Iowa. If you file using the convenient online process, it only costs $30.00 every two years to register with the Secretary of State. When you compare those fees with many other states, including highly regarded Delaware, Iowa is quite the bargain.
The study, released by the Chamber of Commerce's Institute for Legal Reform, is a benchmark by which companies, policymakers and the media assess the fairness of legal systems in the 50 states. The more than 1,400 attorneys who participated in the poll were asked to judge a number of factors, including overall treatment of tort and contract litigation, treatment of class action suits and mass consolidation suits, judges' impartiality and competence and juries' predictability and fairness.
A full report and state-by-state results are available at the Institute for Legal Reform or by calling the U.S. Chamber of Commerce at (202) 463-5682.
If you are in the process of starting your own business or interested in starting one I suggest reading the following Entrepreneur article entitled Small-Business Myths Busted.
Man Who Looks Like Mike Wants $832 million
Mike Downey of the Chicago Tribune reports that a man has filed a lawsuit seeking $832 million against Michael Jordan, Nike and Nike chairman Phil Knight because the man looks too much like Michael Jordan. The 51-year-old man stands 6 foot tall (Jordan is 43 and 6'6") and apparently does play pick up games at his local YMCA. Allen Heckard's lawsuit alleges Nike and Phil Knight made Jordan one of the world's most recognizable figures in the world - which causes significant problems for him. He has apparently sued Jordan because he is in fact Michael Jordan.
If the Plaintiff wins this one the flood gates will open for celebrity look-alikes everywhere.
Read the full story here.
One of the best business books I have read recently is Five Dysfunctions of a Team by Patrick Lencioni of The Table Group. In an easy-to-read format he diagnoses symptoms of teams in trouble:
1. Absence of Trust
2. Fear of Conflict
3. Lack of Commitment
4. Avoidance of Accountability
5. Inattention to Results
My guess is the flaws of malfuntioning teams may hit home for many businesses and law firms. This book is definitely worth the read.
A recent audit by Palisade Systems of Ames, Iowa found that the biggest threat to a data breach or theft comes from employees or consultants that do not property secure the data they are entrusted with. Companies may spend millions to keep out hackers but only 2% of companies have monitoring and content filtering technology in place to prevent future misuse or theft of sensitive data from employees.
Click here for more information on how employees pose the biggest threat to data security.
Thirty TouchPlay businesses have sued the State of Iowa claiming the state breached its contract with the businesses when the legislature banned the TouchPlay lottery machines earlier this year. The lawsuit does not request specified damages but the businesses will be seeking millions. Earlier this year five businesses unsuccessfully fought for an injunction to stop the state's ban. Legislators are confident they will again prevail in this latest legal fight.
For over fifty years, the Sullivan & Ward law firm has represented rural electric cooperatives and generating electric cooperatives in the state of Iowa, as well as several electric cooperatives from across the country. Our attorneys, including John Ward and Michael Joynt, have gained national recognition for their expertise in the area of rural electric cooperatives and public utility law and are often speakers for various seminars throughout the country. Sullivan & Ward also represents many telephone and water cooperatives throughout Iowa.
In its capacity as general counsel for these organizations Sullivan & Ward advises companies and their boards on issues of corporate governance, general business functions, employment matters and litigation. The firm has extensive experience with matters unique to electric cooperatives including formation and organization, voting rights, tax issues, FERC issues, RUS programs and other regulatory matters.
Click here for more information concerning Sullivan & Ward's rural electric cooperative and public utility law practice.
Seattle, Washington lawyer D. Jill Pugh recently wrote an interesting blog post regarding the fact employers are increasingly using Google to find out information about employees and applicants. Employers are able to find out all kinds of information on the Internet including the sorts of information that are illegal to ask in an interview. (Such as age, marital status, whether or not the individual has children, arrest record, value of your home and more).
Pugh raises a valid point that it would be difficult for an applicant to prove that the decision maker did an online search or that the information influenced the decision. She recommends that job seekers should keep tabs on their online "profile" - especially if it contains embarassing or false information.
To find out more please visit Pugh's Employment Law Blog and the article she cited from Business Week.
SPAMMER TO REINVENT HIMSELF: MOVIE TO FOLLOW?
I recently read an article about the The State of Texas and Microsoft filing a lawsuit against one of the world's worst purveyors of spam, Ryan Pitylak. Pitylak apparently admitted to sending out 25 million spam emails a day at the height of his business operation. Pitylak was fined $1 million and has been forced to sell his house and BMW. Things would not seem to be going his way, right? Not so fast.
In taking a page out Frank W. Abagnale's book (you remember the movie, Catch Me If You Can)Pitylak is reborn as an anti-spammer and is offering is services to Internet companies so they can stop folks like himself. If he's lucky maybe there will even be a movie made about him.
Only in America.
BIG BROTHER IS WATCHING
Tech companies are getting ready for a big fight. The Bush administration is calling for Internet and telephone companies to keep detailed records of customers' online activities for a period of at least two years. Frankly, that is scary.
The government wants more than just terrorism and child porn searches. According to the experts the government is saying keep everything on everyone and we will sort it out later. Companies such as Google and Qwest have been resistant to such requests. I hope other companies will follow suit.
In my opinion, the chances of exploitation are considerable. Fighting criminal activity and terrorism is one thing but opening up everything to the government is going too far.
DES MOINES UTILITY FRANCHISE TAX CASE HEADED TO TRIAL
Last week, the Iowa Supreme Court reversed a lower court ruling on a franchise tax issued by the City of Des Moines on utilities. Des Moines had been sued in District Court by Lisa Kragnes seeking to declare the utility franchise tax illegal. She won in district court when the judge granted her motion for summary judgment. The City of Des Moines appealed and the Iowa Supreme Court reserved the summary judgment decision.
The Supreme Court reversed the case because it ruled a geniune issue of material fact exists as to whether all or part of the franchise fees are reasonably related to the City's administrative expenses. The Court ruled there is no question the grant of the franchises to the utility causes the City to incur some ongoing administrative expenses in the exercise of its police power. These expenses would include the reasonable costs of inspecting, supervising and otherwise regulating the gas and electric utility franchises.
The Court has now remanded the case to the district court for a trial on the merits. The critical issue is whether the fees charged by the City of Des Moines bear a relationship to the cost to the City of the utility's occupancy of public areas in the City. The Court said the case record is replete with references that the City of Des Moines used a portion of the franchise fees for purposes other than administrative expenses. The Supreme Court, however, ruled that this fact alone does not mean Des Moines is not using other streams of revenue to cover the administrative expenses it incurs as a result of granting MidAmerican the gas and electric utility franchises.
The upcoming trial will determine if the franchise fees are in fact reasonably related to the City's administrative expenses. If not, the district court will then issue an order disallowing the franchise fees as contained in the ordinances. If the franchise fees are reasonably related to the administrative expenses, the court shall enforce the ordinances up to an amount equal to the fees reasonably related to the City's administrative expenses in exercising its police power.
Casey Blake Taking the Majors by Storm
As my loyal readers know I am a huge baseball fan. I follow the box scores every morning of Indianola, Iowa native Casey Blake. As of this morning, Casey was leading the American League in hitting. He also now owns a 13 game hitting streak while hitting .366 with 7 home runs. He is putting up All-Star numbers indeed.
Go Tribe!
Lawyers Beware!
A recent Forbes article pointed out that lawyers are increasingly subject to lawsuits - not from their clients - but from third parties who may have been injured from the lawyer's legal advice. The article said, "It has become routine for lawyers to sue lawyers."
Traditional malpractice suits are holding steady although the awards appear to be growing. Many of the largest verdicts stem from conflict of interest cases.
The Equal Opportunity Commission even sued a 1,600 lawyer law firm claiming it demoted 31 shareholders because of their age.
The cloak is apparently off lawyers who were once treated as the gatekeepers of the courthouse. One thing is certain - lawyers will not receive any sympathy cards from doctors.
Watch Out for Resume Fraud
Recent news stories show resume fraud presents a big problem for your business. Recently, the Minnesota Vikings Director of Player Personnel was fired for inaccuracies on his resume. Iowa State University has had multiple cases where coaches and faculty have lied on their resumes. Could this happen to you?
Chances are it could. The numbers in a study I read are astounding:
44% of job applicants lied about work experience
41% of job applicants lied about eduation
23% fabricated credentials or licenses
Some things you might do to prevent resume fraud include:
1) Conduct background checks;
2) Have a fraud/ethics policy;
3) Communicate policy to employees and prospective employees;
4) Monitor compliance with the policy;
5) Enforce the policy consistently.
TouchPlay Dead
Yesterday a Polk County District Court judge rejected Plaintiffs' request for an injunction in the TouchPlay lottery cases. A federal court judge previously ruled in a similar manner. The Plaintiffs had requested an injunction to lift the legislative ban of the machines which goes into effect today at 8:00 a.m. The court ruled the Plaintiffs were not likely to show that the legislature exceeded its authority. Further, the Court found there was nothing in any documents or agreements that bound the State of Iowa to maintain its business relationship with the TouchPlay vendors.
The legal battle may continue if the Plaintiffs' appeal but TouchPlay is apparently dead.
Are You Motivated?
Yesterday I attended the Get Motivated Seminar in Des Moines. Here are some sample tidbits from the seminar. Most are common sense but as someone once said, "Common sense is not all that common."
Here are five cornerstones of success as told by Suzie Orman.
1) Think Great Thoughts - have a positive mental attitude
2) Say Great Things - do not speak negatively.
3) Take Great Actions.
4) Wish Others Greatness
5) Love Yourself and Each Other.
Here are a couple of tips from Zig Ziglar.
1) People will not buy until they know how much you care.
2) If someone asks you how you are doing say, "Better than good!"
Phil Town - Successful Investor
1) The best tipoff that a stock is going up - "Insider Buying" (Peter Lynch)
2) The best tipoff that a stock is going down - "Insider selling" (Peter Lynch)
3) Warren Buffett's rules of making money - #1. Do not lose money. #2. See rule #1.
Peter Lowe
1) Our words control our mind.
Overall I enjoyed the seminar and would recommend it the next time it comes to Des Moines.
Outsource Your Legal Work to Iowa:
I have recently read several articles concerning the outsourcing of legal work to India and other countries. In fact, outsourcing is becoming popular for high level legal work including mergers and acquisitions. I have often wondered - why don't companies outsource their legal work to Iowa? Relatively speaking we have lower hourly rates than larger metropolitan areas of the country and the quality of lawyers is excellent among the Iowa bar.
So take note and send that business to Iowa.
Talkin Baseball:
Let's take time away from business and corporate law. Let's talk baseball.
One of the bright spots in the major leagues this year is the play of Indianola, Iowa native Casey Blake for the Cleveland Indians. Casey is hitting over .400 and currently ranks in the top ten in batting average and on-base-percentage. Could an all-star game be in his future? A great start is no guarantee but Casey has historically played his best ball after April and May. Let's go Tribe!
On the downside, it is Barry Bonds. Bonds may very well be the greatest hitter that ever lived. (My Grandpa is probably rolling over with that comment but I never saw Ted Williams). I once saw Bonds receive four straight intentional walks. Sixteen straight balls. Pitch number seventeen? Bonds hit it out of the park. Who else could do that? Despite the revelations in Game of Shadows there is no conclusive proof that Bonds knowingly took steriods. It is tough to defend Bonds but I find it hypocritical the way Major League Baseball has acted with Bonds, McGwire, Sosa et al. MLB glorified the pursuit of the single season home run mark and fans returned in droves to stadiums across the country. (Recall that baseball was practically dead before Sosa and McGwire did their magic). Then came Canseco and his book. Next, Congress put the pressure on several sluggers and now the target is Barry Bonds. MLB recently announced it plans to investigate Bonds to determine if he used steriods.
It appears Bonds may be prosecuted for perjury. Interesting. I recall Rafael Palmeiro testified before Congress that he did not take steriods - shortly before he tested positive for steroid use. Was he prosecuted? No. In fact, the President of the United States (and former Texas Rangers owner while Palmeiro played there) supported his friend 100 percent. Bush believed Palmeiro did not take steriods even after a positive test! Bonds? The guy could really use a friend.
No Good Deed Goes Unpunished:
When it comes to lawyers it appears that no good deed goes unpunished. After all, we are easy targets, right? Recently a Des Moines Register letter to the editor unfairly criticized some lawyers who had volunteered for junior high and high school mock trials. The letter said the lawyers made a "mockery" of our mock trial system because certain lawyers admitted to students that they had not read the materials before judging the contest. The writer further stated the lawyers gave the impression to the students that due diligence is not important within the Iowa bar.
How unfortunate these volunteers would be called out on the carpet. Lawyers across Iowa volunteer countless hours judging junior high, high school and university mock trial tournaments each year. These tournaments include local, regional, state and national tournaments. Each year lawyers leave their busy law practices and spend time away from their families to assist students. The mock trials occur during the middle of work day, in the evening and sometimes even on the weekend. The only compensation is knowing you have served your community. Due to tight schedules these lawyers may not always have time to read the case materials before volunteering. Does this mean they should not volunteer?
The reality is that every time a lawyer steps in front of a jury that jury is hearing the case for the first time. It is the lawyer's obligation to educate the jury about the facts of the case. Often judges may be unfamilar with the facts of a case before a bench trial. Again, the lawyer must educate the judge. I see nothing wrong with a mock trial judge that has not read the case still volunteering their time. Perhaps it is more realistic and less contrived.
Despite the writer's pot shot it is obvious these lawyers demonstrate each year that community service and assisting our youth is important. Is that such a bad example?
Flu Pandemic Planning for Business - Alert Guest Blogger: Mark Landa of Sullivan & Ward, P.C.
In a recent Boston Globe article highlighting the emphasis on corporations planning to meet the challenges to be posed by a flu outbreak, it was asked, "If a super-flu sweeps the globe, who will haul away the garbage? Keep the factories running, making cars and computers and tissues? Stock and sell groceries? Who will keep the electricity flowing?"
A survey of U.S. businesses has revealed that two thirds are not adequately prepared to protect themselves from an influenza pandemic and 39% say there is not much they can do anyway. A national preparedness plan issued by President Bush in November stated that, in a worst case scenario, the country will need about 750,000 ventilators. U.S. hospitals estimate there are 105,000 ventilators available today and 100,000 are currently in use. The nation's school, long recognized as being incubators for flu and other viruses are being told to plan for the possibility of a flu outbreak. Regardless of the planning for such an event, all federal and world health organizations have warned that we should be prepared to plan for a widespread flu outbreak as if a blizzard is coming - a blizzard that could last up to 18 months.
World and U.S. Health organizations have also concluded that vaccinations will not be available to protect us from the spread of influenza and that the only defense for at least the first six months of any true pandemic will be the health precautions that businesses, schools and churches take to prevent its spread among workers, students and congregations. All organizations are advised to establish a plan to prepare for the likelihood of flu outbreak whether it is limited to a local region or is worldwide.
The Iowa Department of Public Health has recommended that community planning be initiated as soon as possible and that this planning occur at the county level.
Tips to Protect Your Business and Customers from Identity Theft
If your business maintains people's information, you must protect that information from misuse. Here are some basic tips from the Better Business Bureau, National Cyber Alliance and Federal Trade Commission.
1. If you do not need the information, do not collect it. The more information you have, the more tempting it becomes to a thief and the more damaging it is to your customers if the information is stolen.
2. If you need it once, do not save it any longer. Companies sometimes collect information that's necessary to complete a single transaction, then file that information away (either in a paper file or in the computer file). For example, what about job applications for people you do not hire? These contain all sorts of information, including social security numbers. If you don't keep it, it cannot be stolen. You should also have well-drafted document retention policies regarding all company and employee documents.
3. If you have got it, but you don't need to save it, dispose of it carefully. A good deal of identity theft happens in the trash barrel or dumpster. Even the small business can afford an inexpensive paper shredder (preferably the cross-cut kind). Make sure you use the shredder to dispose of customer or employee records.
4. If you have to keep it, think security. First, make sure those paper records that contain personal information are kept under lock and key. Make sure computer terminals are password protected. Limit the eyeballs that have access to these records - only those who have an absolute need-to-know should have access to personal information. Don't allow customers or others to wander around the private areas of your business.
5. Do not broadcast personal information. How often have you stood in line at an office or store behind someone who was being asked to give his/her social security number, telephone number or birth date? How many times have you watched a company's employee pull up personal information on a computer screen that is visible to other customers? Or have you seen personal information on a file that was left open on a desk or counter? Instruct your employees to be sensitive to these issues. Turn computer screens so they can't be viewed by anyone other than the operator. Instruct employees who need to have personal information to have customers jot that information down, and do not repeat it out loud where it can be overheard by others. (Dispose of the writing with a shredder). Do not put personal information like account numbers in billings or letters where that information is visible through windows in the envelope.
6. Do not use Social Security Numbers as account numbers. This practice is just downright dangerous - to you and your customers.
7. Do not give out employee or customer information to anyone whose identity cannot be positively confirmed. Information thieves and stalkers tell authorities over and over how easily they were able to obtain all sorts of valuable information simply by calling small business owners or personnel departments and asking. Posing as government agencies or credit grantors or health insurance providers, these thieves have found that a well-crafted, believable story can often get you past the best locking file cabinets or pass-word protected computers. Your organization should have very strict policies on when and how employee or customer information is shared.
8. Locks and alarms are a real deterrent. If you have done everything suggested, you will be more secure during business hours. Make sure your business is just as secure when your business is closed. Make sure all vital records and offices are locked during non-business hours. Exterior doors should have deadbolt locks. Hinges on exterior doors should be secured to prevent removal. Exposed windows should have shatter-proof glass. Your business exterior should be adequately lighted from dark to dawn. Naturally, the business should be protected with an alarm system, preferably one that is monitored by a security company. Your business insurance company -- or, in some cases, your local police - may be able to assist you with a security assessment.
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