http://exemplarlaw.ehclients.com/index.php/category/15/ en emelia@exemplarcompanies.com Copyright 2011 2011-12-16T19:03:20+00:00 http://www.exemplarcompanies.com/site/congress_proposes_bill_to_exempt_more_it_workers_from_overtime_federal_over/ http://www.exemplarcompanies.com/site/congress_proposes_bill_to_exempt_more_it_workers_from_overtime_federal_over/#When:15:35:35Z You may have heard about a new bill introduced in the U.S. Senate that would change the classification of “professionals” exempt from overtime pay requirements to include more types of I.T. workers.You may have heard about a new bill introduced in the U.S. Senate that would change the classification of “professionals” exempt from overtime pay requirements to include more types of I.T. workers. The linked article discusses the wisdom of the policy and some of its potential consequences. But I’d like to talk about a few things that the commentary has overlooked on a practical level. Suppose , hypothetically, that congress passes this bill and it is signed into law. Simply because the federal government has lifted the requirement for overtime pay for certain workers in IT does not necessarily mean that a given employer can immediately cease paying these workers their overtime wages. There are a few other hurdles that employer would have to clear, first. Watch out for State Law For example, Massachusetts law sets out in MGL c. 151 §1A the general rule for overtime pay and a list of exempted employees. This list also includes “professional person[s],” but it doesn’t appear to include IT workers. Your state’s law may be different, and employers with employees in multiple states will have to review each state’s law on overtime before they can make any changes to payment, even if the bill were to become federal law. So, let’s suppose the employee in question works and is paid in some state that has an exemption for IT workers. Are you ready to roll with a new wage policy that no longer provides overtime? Watch out for Existing Employment Agreements If the law used to be that there was an overtime requirement, then you probably got good enough advice to have that fact reflected in your employment agreement. It would be impossible to write overtime out, and attempts to do so through misclassification of employees as independent contractors often result in serious penalties. The problem is that any employment agreement previously entered into will still be in effect after the new law is passed. It’s a very real contract, not just a handbook, and if an employer tried to renege on promised overtime pay, that would breach its agreement and it would be liable to the affected employees for the lost wages, and maybe for some penalties. Employers may be tempted to just “update” employment agreements to reflect the new changes in the law. But this is like trying to “update” your mortgage by moving the decimal point over. It’s a contract, so you need the other party’s acceptance to change it! And getting acceptance isn’t enough: you may also need “fresh consideration.” After all, there are probably a lot of people who would agree to losing their overtime pay rights on the condition that they not be laid off. But from a legal standpoint, there has been no change in the position of the employee—no inducement—to accept this new agreement. In an example from Pennsylvania, when an employer tried to amend its non-competition contract with its employees, it failed to offer any new incentives like cash or promotions. When the employees sued, the courts held that no contract was ever formed because there was no consideration present to make it valid! There is no doubt that if the proposed bill were passed, it would affect a large number of people. But maybe not immediately, and maybe not properly. You can contact the author here, and follow @gerritbetz and @ExemplarCo on Twitter. General 2011-12-16T15:35:35+00:00 http://www.exemplarcompanies.com/site/crowdfunding_bill_for_small_business_ventures_moving_in_house_and_senate/ http://www.exemplarcompanies.com/site/crowdfunding_bill_for_small_business_ventures_moving_in_house_and_senate/#When:15:27:00Z On the heels of our blog in September on crowdfunding as a means to finance a startup, the Obama administration has supported crowdfunding bills, and now the House of Representatives has delivered the Entrepreneur Access to Capital Act (H.R. 2930). Crowdfunding Bill for Small Business Ventures Moving in House and Senate On the heels of our blog in September on crowdfunding as a means to finance a startup, the Obama administration has supported crowdfunding bills, and now the House of Representatives has delivered the Entrepreneur Access to Capital Act (H.R. 2930). Scott Brown (R-MA) has introduced his own version, the Democratizing Access to Capital Act (S. 1791) in the Senate, but it is still in committee.  And just days ago in Boston, I attended a lunch with a group of business lawyers to discuss crowdfunding and how it might affect business as we know it. You can read the bill in its entirety above, but I give a very basic breakdown here.  The bill adds a new exemption for rounds under $2 million, and the maximum investment per individual is either $10,000 or 10% of that individual’s annual income, whichever is lower.  Although the new rule reduces the legal expenses by simplifying compliance, compliance doesn’t disappear entirely. But if a Company uses a third-party site (e.g., Indiegogo) to handle the issuance, that site can handle many of these requirements for the Company, which is a big relief.  These requirements come in three flavors: Investor Protections The issuer (whether that’s the Company or the crowdfunding site managing the transaction) has to warn investors that the investment is speculative, and that they can’t sell the securities anytime soon. Issuers also have to quiz investors on basic matters of risk to ensure they really get it. Finally, the issuer has to have some electronic means of communication for the investors on its site.  Sharing Information with the Securities Exchange Commission The issuer has to send the SEC information like its name, address, website, and a list of employees. They also have to notify the SEC when they begin an offering and complete one. Finally, they must allow the SEC to have the same level of access to their website as any investor would have. Fraud Prevention Mechanisms Keeping in mind that all of the anti-fraud rules that exist in the securities laws still apply, there are a few additional but small burdens to prevent fraud. One is that issuers have to outsource all their cash handling to a third party custodian. This third party won’t be allowed to release any money until at least 60% is raised. This should disappoint scammers who were aiming for a long-tail approach to defrauding investors.  Another restriction is to avoid giving investment advice. I’m not sure what effect this would have on site layout—if you feature different startups on the homepage, are you implicitly endorsing investment in those startups?  Does that constitute advice? I don’t know. The SEC will clarify, I’m sure. Stay tuned. Contact the author here, and follow @ExemplarCo and @gerritbetz on Twitter. General 2011-12-07T15:27:00+00:00 http://www.exemplarcompanies.com/site/boilerplate_contracts_matter_blackberry_edition/ http://www.exemplarcompanies.com/site/boilerplate_contracts_matter_blackberry_edition/#When:15:06:47Z Earlier we blogged about forced arbitration clauses in mobile contracts, and at the time I struggled to contrive situations where hundreds or thousands of people would want to sue a carrier. As they say, you can’t make this stuff up.Earlier we blogged about forced arbitration clauses in mobile contracts, and at the time I struggled to contrive situations where hundreds or thousands of people would want to sue a carrier. As they say, you can’t make this stuff up. In October, BlackBerry users suffered a total outage of service for a period of days, and now BlackBerry’s parent company, Research in Motion (RIM) is facing class action lawsuits in the U.S. and Canada. The first article reports that the U.S. complaint relies on an implied contract between BlackBerry and End Users as its starting point for getting damages out of the mobile carrier. But BlackBerry wouldn’t leave something like that to a merely implied contract. Of course, they have a rigorous Blackberry Solution License Agreement. This agreement provides that all users have accepted its terms by “downloading, installing, activating or using the [BlackBerry] software . . . .” (emphasis mine). So much for implied terms. These terms are “express” because they are expressed explicitly in writing (but orally communicated terms are express, too!). Arbitration Rears its Head Again You guessed it—this Agreement calls for mandatory arbitration both in Canada and the U.S. in § 26(d) on page 20. So, according to this Agreement at least, those plaintiffs above can’t start this battle in a court. And what about class actions?The same §26(d) provides “No dispute between the Parties, or involving any person but You, may be joined or combined together, without the prior written consent of RIM.” So they apparently can’t team up, either. Wait—Go Back. What’s the Difference Between Express and Implied? It’s best to talk about this in the context of warranties. §19(a) and (b) on page 14. These are warranty disclaimers. Everyone is familiar with express warranties, like the mileage warranty on a car or a 1-2 year warranty on an electronic device. Those are express warranties because they’re mentioned in advertising materials. The good news is that there are warranties implied in everything that you buy! But these warranties aren’t replacement warranties. Usually they only warrant that the thing functions at a basic level, is not harmful, and is suitable for the purpose that it advertises it serves. The bad news is that many of these implied warranties can be disclaimed. “As is” usually suffices, and you bet you’ll find “as is” in §19. In fact, you’ll find even more language saying that you agree your BlackBerry might not work at all, and that if it does work, it may be unsatisfactory, the service may be interrupted, and that your transmissions may be inaccurate or go undelivered. Sounds like a great product, huh? Anything Else I Should Know About in There? §20 on page 16. This kind of limitation of liability appears in many contracts. In this case, users have agreed that they won’t hold RIM liable for incidental damages. Incidental damages are the bad things that happen as a result of some other failure. For example, a phone malfunction doesn’t cause you immediate harm in the same way that, say, a pacemaker malfunction would. But you might lose business because you couldn’t receive an email, process a payment, or do anything else you were relying on your BlackBerry for to achieve other goals. Well, you’ve “signed” away the right to sue for that. And even if you do have a claim, you’ve agreed to only take a maximum of $500. Is It Really That Restrictive? Tentatively . . . no. Even though the Agreement reaches very far, some of the terms are wishful thinking, and RIM knows it. That’s why this language appears before the warranty disclaimers: Some countries do not allow the limitation or exclusion of consequential, indirect or other damages in contracts with consumers and to the extent you are a consumer the limitations or exclusions in this section may not apply to you. Remember that each of the 50 United States has its own consumer protection laws. Some of these laws prevent the disclaimer of implied warranties, and even though the Agreement chooses New York as the state law that will be applied to it, a court in another state might ignore this for public policy reasons. It’s impossible to know which terms will be enforced and which ignored until the claims are filed and the dust settles. Be sure to read and understand your own documents, and insist on proper protection for your business. When in doubt, ask a professional! Questions? Comments? Contact the Author. General 2011-11-02T15:06:47+00:00 http://www.exemplarcompanies.com/site/update_on_amazons_silk_and_privacy_concerns/ http://www.exemplarcompanies.com/site/update_on_amazons_silk_and_privacy_concerns/#When:16:00:03Z We blogged about the privacy concerns around the Kindle’s new Silk browser not long ago. Now, the Electronic Frontier Foundation has done a more thorough review of the Kindle Fire’s Silk browser and has concluded that there are some privacy pros and cons that weren’t obvious before.We blogged about the privacy concerns around the Kindle’s new Silk browser not long ago. Now, the Electronic Frontier Foundation has done a more thorough review of the Kindle Fire’s Silk browser and has concluded that there are some privacy pros and cons that weren’t obvious before. The unexpected good news is that there are privacy benefits for users who choose to allow Silk to connect to Amazon’s servers. All data sent to and from Amazon is encrypted to some degree, which means that users connecting over an unsecured network (increasingly common in public places) can’t be spied on as easily by other users on that network. Yet, even with the default setting to allow Silk to route requests to Amazon on, no secured information will be sent (e.g., sites starting with https://). These requests bypass their servers and are handled as if you had opted to use the Silk as an ordinary browser. The expected not-so-good news is that Amazon will still log URLs associated with a given browsing session. This doesn’t include personally identifiable information, unless you provide it yourself unintentionally. Ever notice how often websites plug your searches into the URL? Do a search from Youtube’s search bar and look in your address bar. Amazon would have a record of that if it were done through Silk on their servers. If this doesn’t sound like a big deal, read about the time AOL released “anonymous” search data (also linked within the EFF article). I’ll leave you to read the EFF’s full post for more details. Contact the author via email. General 2011-10-27T16:00:03+00:00 http://www.exemplarcompanies.com/site/how_can_employers_leverage_interns_legally_and_effectively/ http://www.exemplarcompanies.com/site/how_can_employers_leverage_interns_legally_and_effectively/#When:18:47:16Z Many employers are improperly using Interns as free labor, violating the Fair Labor Standards Act. And yes, the FLSA applies to all employers, even ones who don’t have any unionized employees. Even the National Labor Relations Act (NLRA) applies to all employers, union or not. Recently, I was browsing x10i Social Media and their social blog about various topics from processing online payments with your smart phone to creating a better landing page for customers. It’s a decent (and local, for our Massachusetts readers!) resource for any small business struggling with marketing in the age of social media. One of the latest posts discusses mobilizing interns to step up a small business’s marketing game. This may sound very attractive—the interns get to learn, earn credit from their college, and you get to finally kick off your online presence or knock a few items off of the to-do list! Slow down. Be cautious with interns. Many employers are improperly using them as free labor, violating the Fair Labor Standards Act. And yes, the FLSA applies to all employers, even ones who don’t have any unionized employees. Even the National Labor Relations Act (NLRA) applies to all employers, union or not, but that’s beyond today’s topic. The improper hiring of interns has already made headlines. Last year, the New York Times reported on the increase in internships because of an oversupply of fresh college graduates looking for work. And just last September, the Times reported again on a new development: interns suing Fox Searchlight Pictures for not paying them to do menial tasks on the set of the film Black Swan. OK. So, How Can I Use Interns Legally? First, some background. The FLSA defines an employee as “any individual employed by an employer.” 29 U.S.C. 203(e)(1). The statute goes on to define “employ” as “to suffer or permit to work.” If that doesn’t sound very helpful, that’s because it’s so broad you can drive a truck through it. Interns are an exception. But what is an intern, exactly? In short, the theory is that interns work for education, not money, and that the employer is a teacher, not a beneficiary of this work, so these interns are not an FLSA “employee.” The federal regulators apply a wishy-washy six-factor test based on a 1947 Supreme Court case to determine whether an individual is a true intern or an employee. Here are the six factors: 1. The training, even though it includes actual operation of the facilities of the employer, is similar to that which would be given in a vocational school; 2. The training is for the benefit of the [intern]; 3. The [intern]s do not displace regular employees, but work under close observation; 4. The employer that provides the training derives no immediate advantage from the activities of the [intern]s and on occasion the employer’s operations may actually be impeded; 5. The [intern]s are not necessarily entitled to a job at the completion of the training period; and 6. The employer and the [intern] understand that the [intern]s are not entitled to wages for the time spent in training.  (emphasis mine) (“intern” was changed from “trainee” in the original) I won’t dive too deep into any of those here, but if you want to see an example, the U.S. Department of Labor applies it to an example that is right on the line between intern and employee. Did you notice that whether the interns get college credit is not a factor in that list? Your takeaway should be that interns are students even when they’re with you, and that by including them in your business, you’re doing them a favor at your expense. How Can Anyone Use Interns Effectively, Then? DISCLAIMER: The following is not legal advice nor a substitute for legal advice, and no attorney-client relationship is established by your reading or relying on it. Just because you can’t use interns as free labor doesn’t mean they can’t be good for your business. Interns are often your biggest champions. Think of it this way: they could be earning $0/hour anywhere, but they chose to come to you. There’s something about your business they like, and as they learn more about it, they’re able to become a great advocate for you when they go back to their friends and family. Interns are a second pair of eyes and ears. Include your interns in as many meetings, deals, or projects as you can. Have them prepare for these things as if they were flying solo, but do all the real work yourself. It’s a fantastic learning experience for them because it allows them to model how their work would play out in the real world. And, because you have done 100% of the preparation and labor, it still does not displace ordinary labor and provides no immediate benefit to you. Yet, as a peripheral benefit, interns are sure to hit upon great ideas, suggestions, or they may catch one of your mistakes and help you limit the fallout! I’m sorry to burst anyone’s bubble who was excited for extra help in these lean times. But at least you’ll have one less lawsuit target on your business and you may still be able to think creatively with a lawyer about safe ways to implement a force of champion interns! Contact the author General 2011-10-26T18:47:16+00:00 http://www.exemplarcompanies.com/site/amazons_silk_browser_is_watching_you/ http://www.exemplarcompanies.com/site/amazons_silk_browser_is_watching_you/#When:23:09:53Z One of Amazon’s strategies to propel the new Kindle Fire past the iPad includes its new built-in browser, Silk. Silk is unique because it relies on Amazon’s robust cloud services to essentially pre-load website information for users, resulting in significantly faster browsing. Amazon’s bigger machines do the heavy lifting so their lighter devices can simply surf.   But there’s a catch.One of Amazon’s strategies to propel the new Kindle Fire past the iPad includes its new built-in browser, Silk. Silk is unique because it relies on Amazon’s robust cloud services to essentially pre-load website information for users, resulting in significantly faster browsing. Amazon’s bigger machines do the heavy lifting so their lighter devices can simply surf. But there’s a catch. The Silk browser will collect browsing data (Ars Technica). While preserving some level of anonymity (no personally identifiable information is recorded), Amazon will know what sites you visited, how long you stayed, etc. The value to Amazon is clear to anyone who’s ever used the “customers who bought this item also bought” feature from their main site. Being able to observe browsing even with anonymous information, is just short of mind-reading. E.g., if Amazon sees that 50% of those shopping for sleeping bags in August recently looked at the burning man site, they’re much more likely to also be interested in, say, sunscreen or yoga mats than the average outdoorsman. Fortunately there’s an op-out setting for those who don’t want to be tracked at all. Still, this practice appears to be just part of larger trend. No matter what browser you use, your activity is probably being tracked by the browser and websites that you visit. However, the fact that Amazon is routing requests through their own servers dovetails with our earlier post about wiretap laws and the importance of privacy in the web. There’s little difference between the practice outlined in our earlier post and this, except that Amazon is properly disclosing this in its privacy policy. Even with all the press, and considering how few people read privacy policies, it’s still unlikely that most users are aware of this. Contact the author via email. General 2011-10-18T23:09:53+00:00 http://www.exemplarcompanies.com/site/massachusetts_pizzeria_alleged_wage_violation_continues/ http://www.exemplarcompanies.com/site/massachusetts_pizzeria_alleged_wage_violation_continues/#When:17:02:06Z Yesterday the Globe reported that a federal grand jury will hear evidence this week about the Upper Crust Pizzeria’s alleged practice of not paying its workers properly. If you are unfamiliar with this issue, the U.S. Department of Labor initially ordered Upper Crust to pay $341,000 in damages, but Upper Crust may have deducted this later from those same employee’s earnings to avoid actually losing the cash. Yesterday the Boston Globe reported that a federal grand jury will hear evidence this week about the Upper Crust Pizzeria’s alleged practice of not paying its workers properly. If you are unfamiliar with this issue, the U.S. Department of Labor initially ordered Upper Crust to pay $341,000 in damages, but Upper Crust may have deducted this later from those same employee’s earnings to avoid actually losing the cash. The grand jury may find that there is no probable cause to believe that Upper Crust violated criminal laws, or they may recommend indictments against Upper Crust on any number of grounds. In either case, it’s terrible press and certainly has an impact on how consumers view their business (several reviewers on Yelp! have pointed it out with much disdain). Don’t let this happen to your business. Familiarize yourself with the Massachusetts wage law, overtime law and its exceptions, and a few other key laws dealing with retaliation against employees who complain and the exception to employee status: Massachusetts’ independent contractor statute. Really, read them. They’re not that long, and making yourself aware of the issues may prevent you from having to learn more about the treble damages law later on. That said, there are federal law parallels for all of these laws and while Massachusetts is generally stricter (i.e., if you comply with Massachusetts law you will have complied with federal law a fortiori), there are some significant differences. When in doubt, always consult with your attorney or general counsel with expertise in employment law.  Want to continue the conversation? Contact the author via email. General 2011-10-13T17:02:06+00:00 http://www.exemplarcompanies.com/site/who_cares_about_arbitration_anyway/ http://www.exemplarcompanies.com/site/who_cares_about_arbitration_anyway/#When:21:29:17Z Senators Blumenthal and Franken recently introduced a bill that would prohibit mobile carriers from including mandatory arbitration clauses1 in their customer contracts. This, of course, raises the question of what an arbitration clause is, exactly, and why it’s a big deal.Senators Blumenthal and Franken recently introduced a bill that would prohibit mobile carriers from including mandatory arbitration clauses1 in their customer contracts. This, of course, raises the question of what an arbitration clause is, exactly, and why it’s a big deal? Arbitration is semi-formal dispute resolution process. It’s semi-formal because it’s not as formal as a court, which brings with it voluminous rules of evidence, procedure, and entirely of the host state’s laws which decide the outcome. In arbitration, none of this is strictly necessary or guaranteed. This makes arbitration significantly less expensive for the two sides, and administratively much quicker. However, there are rules. Groups like the American Arbitration Association have publicly posted rules that govern their proceedings, and most arbitrators will take common law and state and federal laws into consideration when making a decision. So what’s the big deal? If the law passes, consumer goods companies might have to make really big changes to the way they handle disputes, do business generally, or they may even have to increase fees. Here’s why: Class action lawsuits are often impossible in arbitration. Class Actions are truly scary for consumer goods companies, because while a $200 complaint about a cell phone is obviously not worth the cost of litigation, several thousand consumers’ combined $200 issues certainly are. Damages can quickly add up to millions of dollars. Common Law precedent also can’t come from arbitration hearing because they’re not constitutionally authorized courts. This makes it safer to toe the line because losing in arbitration today has no effect on tomorrow’s arbitration hearing dealing with substantially the same issues. Finally, because arbitration has free reign to consider almost any standards they want when making decisions, companies can rely on one law—there’s less hassle dealing with the nuances of the laws of all 50 states, plus how those interact with federal law. What would happen if the bill passes? If mobile carriers can’t rely on this quick dispute resolution option, they’ll have some choices to make. They could try to revamp their practices to reduce consumer complaints—but this takes time and money. They’ll have to spend more money on dispute resolution as they navigate more complex state rules, some of which have strict consumer protection laws. In any case, this bill would probably cause a fee increase, a drop in profits, or both. Is arbitration good or bad? Don’t think of it in those terms just because there’s a bill proposal about it. Arbitration can be attractive for both parties in a dispute because of its quick resolution and low cost. At the same time, some people may be put off by it. Always ask a business advisor or lawyer if it is wise under the circumstances before including arbitration in your contracts. Want to continue the conversation? You can reach the author via email.  1.  See Verizon’s arbitration clause for example (the rest of the contract has been deleted, and the ALL CAPS formatting has been removed). General 2011-10-06T21:29:17+00:00 http://www.exemplarcompanies.com/site/intro_to_the_low-profit_liability_liability_company_and_the_b-corp/ http://www.exemplarcompanies.com/site/intro_to_the_low-profit_liability_liability_company_and_the_b-corp/#When:11:24:29Z Intro to the Low-Profit Liability Liability Company and the “B-Corp” Lately these two concepts have been coming up frequently in my interactions with entrepreneurs leaders of corporations. Many people today are concerned with more than just the dollars-and-cents bottom line and so they find the ethos behind these corporate forms appealing.Intro to the Low-Profit Liability Liability Company and the “B-Corp” Lately these two concepts have been coming up frequently in my interactions with entrepreneurs leaders of corporations. Many people today are concerned with more than just the dollars-and-cents bottom line and so they find the ethos behind these corporate forms appealing. Today, let’s nail down a quick definition of each and learn about the most important differences between the two. L3C The Low-Profit Liability Liability Company (“L3C” for short) states in its founding documents that profit generation is not its “significant purpose.” Instead, it must “significantly further” a charitable purpose.1 The purpose of choosing the L3C over an LLC or C-Corp is to hopefully be a more attractive candidate for investment from charitable foundations. This is because charitable foundations must spend their cash on a charitable purpose2 and their spending cannot benefit individuals—only the public at large. Because L3Cs explicitly state that they’re not just chasing profits, this should make it easier for foundations to invest in them. B-Corp The Benefit Corporation (“B-Corp” for short, and a wordplay on existing concepts like “C-Corp” and “S-Corp”) is a wholly for-profit entity with ordinary shares. What makes it different is its commitment to “general public benefit.”3 B-Corps submit to certification and are graded by a third-party on their performance in areas like Environment, Community, or Employees. They also have special obligations to internal oversight in the form of a “benefit director” and public oversight in the form of “annual benefit reports.” It’s like Corporate Social Responsibility with some teeth. What’s the Difference and What’s Right for Me? One big difference is that, because each form expressly dethrones profits, shareholders will have problems filing lawsuits on theories that their shares’ value isn’t being optimized. For most businesses though, the legal and business considerations that go into corporate formation have to do with funding and governance. Through that lens, there are probably limited circumstances when a L3C or B-Corp is preferred over a traditional form. One is where you are a fantastic match for funds from charitable foundations. I say fantastic because there is usually less money available than is needed for charity. To get foundation money into your L3C, your business might have to exist in a space where tax-exempt organizations don’t typically do what you do. If there are some in your space already, these are more attractive targets for foundation donations. But one big problem to keep in mind with L3Cs is that they were created to try to get around an onerous IRS approval process.4 The catch-22 is that until that same IRS process blesses the L3C form, foundations aren’t as likely to fund them. A B-Corp may be called for where public perception is very important to your business. A B-Corp doesn’t change much about the legal issues around a Company except for adding more governance requirements. However, it does bring some third-party verification of your corporate social responsibility. In other words, people are less likely to think that B-Corps are just another form of greenwashing. 1. These quotes are taken from the Vermont Statute on L3Cs. 2. Not every noble cause earns a tax-exemption! See here for a list of charitable purposes. 3. This quote is taken again from the Vermont Statute. 4. See Lang, Robert, PRIs and Private Letter Rulings (PDF Link). General, News 2011-09-24T11:24:29+00:00 http://www.exemplarcompanies.com/site/how_to_train_your_mercenary_aka_outside_litigation_counsel/ http://www.exemplarcompanies.com/site/how_to_train_your_mercenary_aka_outside_litigation_counsel/#When:12:23:59Z After 18 years in courtrooms across the country, a few truths become obvious about lawyers and their clients.  One truth is this – outside litigation counsel are not the most effective members of their client’s business team.After 18 years in courtrooms across the country, a few truths become obvious about lawyers and their clients.  One truth is this – outside litigation counsel are not the most effective members of their client’s business team. It isn’t entirely their fault.  Litigators, are, by nature and training, mercenaries, soldiers for hire with no vested interest or understanding of the larger business interests of their clients.  “Winning” a conflict, whatever the conflict is, takes precedence over common sense and big picture, sound business judgment. Let’s use the example of Joe’s Tool Shop and Bob’s Tool Manufacturers, Inc.  The two companies have a business relationship that has enabled both to build their businesses into multi-million dollar ventures over the past five years.  Everyone’s making money, everyone’s happy.  Then some disagreement emerges, often just a minor problem at the beginning.  Joe just had a fight with his wife when the problem hits his desk.  He’s in a bad mood anyway and calls up Bob and gives Bob a piece of his mind.  Bob is unamused, blames the problem on Joe, and demands that Joe fix the problem at his own cost.  Joe doesn’t want to spend the money, and has already blamed Bob, so Joe says “forget it, your problem, you fix it.”  Bob says “screw you, I’ll see you in court” and trots off to his law firm, Dewey, Cheatum and Howe, to file a lawsuit. Now if Dewey were a counselor or psychologist, he would listen to Bob, acknowledge Bob’s frustration, then help guide Bob to some practical solution to the problem.  Dewey might even bring in Joe for a joint session and help the two realize that their business relationship is largely successful and that if they work together to solve this small problem, life can proceed lucratively for both of them.  They can shake hands, apologize for overreacting (everybody has a bad day once in awhile), and get back to work.  This resolution costs a couple hundred bucks and a couple of hours of time, but then its finished.  Problem solved.  Business relationship remains intact.  Done deal. Unfortunately, Dewey is a lawyer, a Type A personality overachiever who has been specially trained in the art of courtroom combat.  Dewey only listens to Bob long enough to develop a battle plan to attack and defeat Joe at all costs (that being at Bob’s costs, not Dewey’s).  Dewey hasn’t met Joe, he has nothing personal against Joe, in fact, he doesn’t even know if Bob is in the right in this dispute, but Dewey’s been hired as a mercenary by a temporarily angry Bob to defeat Joe on his behalf. First, Dewey makes sure he’s going to be paid for his mercenary services.  If he says “I’m going to charge you $400,000 to sue Joe, conduct thorough investigation and discovery into your entire business relationship, hire an expert, and eventually explain to a group of 12 strangers why you are right and Joe is wrong and hope they agree with you,” well, Bob is going to be shocked to his senses and say “gee, it not all that bad; thanks, but I’ll handle this myself,” and walk out the door.  Dewey can’t make any money that way, so he approaches it a little differently.  “Tell you what,” Dewey tells Bob, “I bet that if I just throw a hand grenade at Joe, it will scare him into defeat.  If that doesn’t work, I’ll just charge you by the bullet after that.”  Dewey pulls out his form agreement, charging Bob $5,000 for the hand grenade [a nasty demand letter] and $375/bullet [hourly rate] thereafter.  “How many bullets is this going to take?” asks Bob as he signs on the dotted line.  “Hopefully not many,” says Dewey (he means Bob’s “hope,” not his own.) Second, Dewey starts earning his mercenary pay.  He fires his hand grenade (rarely an effective weapon) then starts shooting bullets from every angle (writing letters, filing motions, requesting every possible type of document, reviewing reams of unimportant and unnecessary documents, arguing with Joe’s lawyer whenever possible, arguing in court).  In fact, he becomes even more efficient by bringing in several associates to shoot bullets at the same time.  Ever wonder why a lawsuit complaint usually has at least three lawyers listed at the top?  A partner and several associates?  They all have remarkably bad aim, only maiming Joe and costing Joe a fortune in doctor (lawyer) bills, but not actually ending the battle (resolving the lawsuit) or even killing him (sending his company into bankruptcy).  Every month Dewey religiously assembles his bullet bill and sends it to Bob.  Cheatum and Howe pat him on the back for his success in shooting more bullets than anyone else in the firm.  Dewey Cheatum and Howe rise to the top of the ranks of the AmLaw 100 list of top grossing law firms in the country, thus justifying an increase in bullet prices to $500/bullet.  Bob keeps paying for bullets, and keeps getting pulled away from business operations to find documents, answer questions, be deposed, go to court . . . he’s losing time and money, and gaining stress.  When will this thing be over and when will life get back to normal?  Bob’s board of directors isn’t liking the excessive bullet bills.  “But I hired the most expensive gun-slinger with the most expensive bullets,” he explains to the board. Bob needs a reality check.  He has hired a high-profile mercenary with expensive bullets whose qualifications are the ability to shoot more expensive bullets without actually ending a war than anyone else.  That is poor business judgment and if he’s not careful, what started out as a small problem could cost him his company.  Dewey doesn’t care.  As long as he’s paid, he will continue firing non-fatal bullets.  Dewey is doing what he loves, what he’s been trained for, and what he is good at - combat.  As long as he’s still standing, he’ll never voluntarily stop. For a mercenary, winning any encounter with an opponent is crucial to survival and crucial to one’s reputation.  There is no compromise.  There is no meeting of the minds.  There is no agreeing to disagree.  It’s war.  At the end there is one winner and one loser.  And let’s be honest, that is just a waste of time and money for any sensibly run business.  Business relationships, even when there are disputes or problems, should not require a loser.  Both sides of the relationship should win something, that is the key to a thriving market economy.  Ever looked at the economy of countries constantly at war?  Everything’s blown up and poverty abounds. So how can you start replacing mercenaries with team players?  Three simple steps will get you started. 1. Align your outside litigator’s interests with your own.  If you are hiring counsel to efficiently resolve a business dispute, arrange a fee structure where there is a financial benefit for prompt resolution.  If you are seeking a large, monetary award, make at least a portion of their pay contingent on the size of the award.  Build in incentives to bypass common time-wasters in litigation and you’ll be amazed how your counsel will learn to be efficient 2. Analyze the firm’s work habits.  If your lawyer is available to you 24/7, that means he or she has no work-life balance and is likely suffering from chronic sleep deprivation, scientifically proven to reduce one’s problem-solving capacities.  Hire counsel who can be a creative problem solver, not someone who will merely spend sleepless days and nights writing about it, arguing with others about it, or shuffling paper relating to it.  If your counsel cannot make good life decisions for themselves, how can you trust them to make good business decisions for your company? 3. Hire for skill, not prestige.  Okay, I know it sounds cool to say your lawyers are from Harvard or Yale, or whatever, but I promise you that those credentials do not guarantee you sound business advice.  Recently I did a little non-scientific research on this topic.  I posed the following question to a wide variety of people: “what is the quickest way to become CEO of a company?”  Most people couldn’t answer the question, at least not without a little prompting, but I got the sharpest contrast in responses on a single day of a business trip.  When I posed the question to a group of prestigious law school students, poised to go out and become your outside counsel, none had any idea what the answer was.  However, when I sat on an airplane next to a professional martial arts fighter and asked him the same question, he immediately responded “you start your own business.” General 2011-09-21T12:23:59+00:00 http://www.exemplarcompanies.com/site/warn_your_users_or_you_may_get_burned/ http://www.exemplarcompanies.com/site/warn_your_users_or_you_may_get_burned/#When:13:06:43Z Today’s blog brings you a cautionary tale from the land of seemingly innocuous information collection and handling. Today’s blog brings you a cautionary tale from the land of seemingly innocuous information collection and handling. Ars Technica writes about how ISPs like RCN have been cooperating with companies like Paxfire to sell your search queries in an unusual way: What commonly happens is that specific search queries (usually for brand names) made from an address bar no longer return the expected Web search results page from Bing or Google or Yahoo. If your ISP has such DNS servers configured, and your computer points to them (most ISP subscribers will by default), typing “Apple” into a browser search bar will take you directly to Apple’s webpage, bypassing the expected search results page. So, what’s wrong with this? The problem is that searches are communications with intended recipients and therefore are protected by the Wiretap act. By grabbing those communications before they arrive and using them for their own gain, ISPs may be engaging in unlawful wiretapping! You may not realize it, but you have plenty of exposure to the protections of various wiretapping laws. This is why customer service directories remind you with recordings that “your call may be monitored for quality assurance purposes.” By saying that, the customer service center is getting implied consent to record your conversation (implied by staying on the line). It’s a very easy way to stay out of trouble in places where two parties must consent to record a conversation. It’s a shame these companies didn’t follow suit in the online context. They could just as easily include in the Privacy Policy or Terms of Use a notice to customers that their searches may be redirected. But the companies doing this probably didn’t realize at the time that they were stepping dangerously close to violating wiretap laws. As businesses try to find innovative ways of generating revenue on the web, problems like this will continue to crop up. Never forget that Terms of Use and Privacy Policies are real contracts like any other. Ignore them (or copy-paste them from competitors—yes, it happens) at your own peril. General 2011-09-20T13:06:43+00:00 http://www.exemplarcompanies.com/site/crowdfunding_a_venture/ http://www.exemplarcompanies.com/site/crowdfunding_a_venture/#When:14:51:47Z Crowdfunding A Venture? Unfortunately, the Securities Act and SEC rules aren’t set up to make Crowdfunding easy. Crowdfunding A Venture? Not as Easy as It Sounds Readers may be familiar with sites like Kiva, Kickstarter, or SecondMarket and wonder if there is a way to attract smaller investments into corporations in a more scalable way than the traditional handshake-by-handshake process with Angel Investors or Venture Capital groups.After all, the acceptance rate with traditional groups is shockingly low. Unfortunately, the Securities Act and SEC rules aren’t set up to make Crowdfunding easy. The 1933 Securities Act was a response to the crash of the 1920s, and its goal can be summed up concisely: protecting purchasers of securities by informing them about the companies they’re investing in. This is why the public sale of securities requires detailed and expensive public filings (known as “registration” with the SEC). It’s also why so many of the exemptions from this registration requirement revolve around raising money among small groups of “sophisticated investors.” Funds, banks, and wealthy individuals are among the sophisticated and they may invest without forcing the company to register with the SEC. By now you can see why the Crowdfunding model doesn’t jive with the SEC. If you can only sell unregistered securities to small groups of sophisticated people, then posting your securities for sale all over the internet for anyone to purchase is a clear no-no. But not all hope is lost. Law Professor Steve Bradford covers this area marvelously in a recently released draft article, Crowdfunding and the Federal Securities Laws. You don’t have to be a lawyer to get a lot out of this, either. The big takeaway from Professor Bradford’s article for a startup or small company is that there’s more than one way to Crowdfund, and some methods won’t put you on the SEC’s naughty list. According to the professor, methods that resemble loans or that offer one-time rewards for investment rather than a share of profits are among the safer alternatives. That said, the area is still complex and the article only draws a general legal border around the issue. It doesn’t weigh what’s the best business decision. Always consult with your advisors or general counsel before taking the plunge.   UPDATE (9/13/2011):  The President’s American Jobs Act includes a proposal that would allow for crowdfunding - specifics still to come! General 2011-09-08T14:51:47+00:00 http://www.exemplarcompanies.com/site/online_legal_document_peddlers_youre_not_lawyers/ http://www.exemplarcompanies.com/site/online_legal_document_peddlers_youre_not_lawyers/#When:15:03:38Z This post was inspired by this recent story in the ABA Journal: Alabama Bar Group Files Suit to Ban Legal Zoom.This post was inspired by this recent story in the ABA Journal: Alabama Bar Group Files Suit to Ban Legal Zoom. I meet people every day who need corporate legal counsel. Often they think can’t afford it. They may think they have no choice but to spend a smaller sum of money on forms from a site like Legal Zoom. What they’re not thinking about is that Legal Zoom and others of their ilk are not lawyers. Many like Legal Zoom are essentially proprietary search engines with a non-lawyer front end and a database of forms and laws on the back end. Everybody likes to argue about whether this is the “unauthorized practice of law.” But I’d like to focus on something less technical. If a licensed lawyer did over the phone what Legal Zoom does over the web, that lawyer would be punished by state authorities for not providing competent legal representation. Every state has some equivalent to Model Rule 1.1: "A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation." I’d like you to imagine calling a lawyer for advice, but having the lawyer only ask you the same questions as he asks everybody. Imagine that when you ask for clarification, he ignores you. This isn’t competence. It actually seems kind of mean. The conclusion is that Legal Zoom might be practicing law illegally, but even if it were a lawyer, it would be punished for incompetence. Now if you’ll excuse me, I’m off to read a copy of Waiting for Godot translated by Google. General 2011-08-31T15:03:38+00:00 http://www.exemplarcompanies.com/site/lawyerclock/ http://www.exemplarcompanies.com/site/lawyerclock/#When:13:46:54Z The PAIN of hourly billing visualized!  From our friends at LawyerClock.com. LawyerClock is the only way to visualize and truly feel the stabbing pain of lawyer meetings - forbes General 2011-07-11T13:46:54+00:00 http://www.exemplarcompanies.com/site/small_business_administrations_new_women-owned_small_business_federal_contr/ http://www.exemplarcompanies.com/site/small_business_administrations_new_women-owned_small_business_federal_contr/#When:21:19:59Z Female business owners have the opportunity to significantly expand their businesses by taking advantage of the Small Business Administration’s new Women-Owned Small Business Federal Contract Program. Female business owners have the opportunity to significantly expand their businesses by taking advantage of the Small Business Administration’s new Women-Owned Small Business Federal Contract Program. By John Bateman Program Overview The Program, which became effective April 1, 2011, is aimed at expanding federal contracting opportunities for women-owned small businesses (WOSBs) and economically disadvantaged women-owned small businesses (EDWOSBs).  Specifically, the program mandates that federal government contracting officers set aside certain federal contracts for eligible WOSBs and EDWOSBs in industry sectors in which women-owned businesses are traditionally underrepresented.  The SBA has identified 83 four-digit North American Industry Classification Systems (NAICS) codes (and 300 NAICS six-digit sub-codes) that are eligible under the program. How the Program Works The process of setting aside federal contracts for WSOBs and EDWOSBs is substantially the same.  In both cases, the federal contracting officer is authorized to set aside a contract for WOSBs or EDWOSBs if certain criteria are met.  First, the contracting officer will determine if the contract is for a line of business that falls under one of the eligible NAICS codes as discussed above.  If so, the contracting officer will then determine if the anticipated value of the federal contract is less than $6.5 million if the contract is for manufacturing or less than $4 million for any other contract.  If these requirements are met, and the contracting officer has a reasonable expectation that the contract can be awarded at a fair and reasonable price and that at least two WOSBs or EDWOSBs will submit bids for the contract, then he may set aside the contract for WOSBs or EDWOSBs. Eligibility Generally, in order to be eligible for participation in the program as a WOSB, a business must be at least 51% unconditionally and directly owned and controlled by one or more women who hold American citizenship.  In addition, a woman must also manage the day-to-day operations of the business, make long-term plans and decisions for the business, work at the business full-time during normal working hours, and be the highest ranking officer in the business. To be eligible to participate in the program as an EDWOSB, an interested company must generally be at least 51% owned and controlled by an “economically disadvantaged” woman (or women).  A woman is considered to be “economically disadvantaged” if she has a personal net worth of less than $750,000, her annual adjusted gross income averaged less than $350,000 for the three years prior to pursuing certification, and the fair market value of her assets is less than $6 million.  In addition to the ownership and control requirements, an economically disadvantaged woman must also manage the company’s day-to-day operations, make long-term decisions for the business, work at the business full-time during normal working hours, and be the highest ranking officer in the company. Certification In addition to meeting the eligibility requirements discussed above, an interested business must also be certified as either a WOSB or EDWOSB.  Certification can be obtained either through self-certification or through third party certification.  Currently, however, the only method of certification available to interested businesses is self-certification, as the SBA remains in the process of approving third party certification agencies. How to Get Started This program represents a tremendous opportunity for WOSBs and EDWOSBs to significantly grow their businesses through federal contracting.  With the SBA planning to award the bulk of federal contracts during the fourth quarter of FY 2011, there is still time for interested businesses to get certified and compete for these contracts.  Interested business owners should consult the program’s website or contact an Exemplar Team Member for more information. General, Business, News 2011-06-16T21:19:59+00:00 http://www.exemplarcompanies.com/site/quality_vs._quantity_-_the_billable_hour_mousetrap/ http://www.exemplarcompanies.com/site/quality_vs._quantity_-_the_billable_hour_mousetrap/#When:14:37:29Z Billable hours have become a vicious task master hanging over lawyers’ heads, encouraging them to abandon all life outside of the office in quest of squeezing the most hours, and thus the most money, out of the day. Billable hours have become a vicious task master hanging over lawyers’ heads, encouraging them to abandon all life outside of the office in quest of squeezing the most hours, and thus the most money, out of the day. It discourages efficiency of work by definition (why finish a project in 8 hours if you can stretch it out to a 20-hour billable project?) and has no correlation to the “quality” of the work product. “Quality” is defined here as something of value or use to a client. Is the 20-hour brief a “higher quality” than the 8-hour brief? At best, the client will never know. At worst, it is blatant fee gouging. These facts seem self-evident to many, including veteran attorney Evan R. Chesler in the Forbes article "Kill the Billable Hour": The billable hour makes no sense, not even for lawyers. If you are successful and win a case early on, you put yourself out of work. If you get bogged down in a land war in Asia, you make more money. That is frankly nuts. Of course it is nuts, but these self-evident facts are still lost on far too many involved in the legal profession. In the January 2009 issue of the California Bar Journal, the article "Will a bad economy force more changes in the profession?", cites Richard Gary of Gary Advisors, a former chair of Thelen, Reid and Priest, as thinking the billable hour isn’t going to disappear. “We’ve been thinking about going to a different model for 20 years and it’s never happened. Maybe young people will come up with a different mousetrap.” However, [Mr. Gary] added, “I still think it’s the best way to measure value because it is a mechanism of measuring the amount of work that a lawyer did for a client on a particular matter.” With all due respect, hogwash! The amount of time spent on a project is not an accurate reflection of the end product’s value. Lawyers have forgotten that basic truth. Early in my career I found myself as plaintiff’s counsel in a small civil matter against a defendant who was a part-time lawyer who seemed to revel in the opportunity to “practice” law. I vividly recall receiving a 25-page, single-spaced motion to dismiss the case. I can only describe reading the verbose brief as exceedingly painful on the eyes and brain. My opposition brief was one page, double-spaced, setting forth the statute supporting my position. I won the motion. Which brief was more “valuable”? The one that took at least 25 hours to write or the one that successfully convinced the judge? In a more recent example of overkill, a federal judge in New York City found a $100,000-a-day fee application from law firm Dewey & LeBeouf for receivership work to be excessive. U.S. District Judge Denny Chin said that the fee request was “excessive in the context of a securities receivership where hundreds of victims of fraud have suffered substantial losses” and he questioned the firm’s billing rates which were as high as $950/hr for some partners, $605/hr for some associates, and $285/hr for summer associates. Billing rates that high deserve far more than "questioning" and partial and temporary reduction in fee allowances (Judge Chin said they could reapply for the fees later in the case). Billing $285/hr for work done by law students (remember, summer associates have not even completed law school) is unconscionable by any standard. Clients who pay such excessive fees, however, especially large corporate clients, need to acknowledge their own role in encouraging outrageous billing by lawyers. Law firm prestige, and thus the law firms that tend to attract higher net-value clients, has for too long been measured on the same scale as Fortune 500 companies – by annual revenue. Not cost efficiency. Not creative thinking. Not being able to demonstrate insightful legal opinions. Not being successful in any other arena than extracting the most money out of their clients. Every year the American Lawyer magazine publishes AmLaw 100 and AmLaw 200 lists of supposed top law firms in the country. These lists have become the Fortune 500 equivalent for law firms. I verified AmLaw’s criteria for choosing the top law firms on their website; it was disturbing. AmLaw describes “revenue per lawyer” as being “the key measure of law firm financial success, and profits per partner [as] the metric that has turned law firm managers into contortionists.” They go on to credit increases in these metrics by “surging demand for high-end legal services and unrelenting annual rate hikes” and a continuing slowdown in naming equity partners (the top echelon of law firms) and increase in the number of non-equity associates. (see the referenced article at "Lessons of the Am Law 100 2008"). Corporate clients – the “surging demand for high-end legal services” is you, accepting the definition of “high-end” as being on the AmLaw 100 list. The “unrelenting annual rate hikes” is the price you are paying for accepting this criteria and rate hikes will keep increasing at these firms until you, the client, say "no." You are choosing “pedigree” and "prestige" over “quality” in legal services and have only yourself to blame for the outrageous legal bills on your desk. In this time of economic downturn, with companies failing right and left, only the strong and flexible companies will survive. Finally, a substantial incentive to reinvent the antiquated mousetrap of billable hours has emerged. Corporate clients, stop paying outrageous hourly rates and look for quality legal counsel that will provide cost-efficient and useful services. Your company’s survival may depend on it. Lawyers, law firms, and freelance legal professionals, take the lead in offering cost-effective, solution-based services to your clients at a price that is a good value for the money.  Here’s to building a better mousetrap! General 2011-04-21T14:37:29+00:00 http://www.exemplarcompanies.com/site/alternatives_to_the_billable_hour_work_say_aba_panelists/ http://www.exemplarcompanies.com/site/alternatives_to_the_billable_hour_work_say_aba_panelists/#When:22:47:14Z Clients have a general mistrust of hourly billing, said panelist Christopher Marston, whose firm, Exemplar Companies Inc., has successfully implemented a value-pricing model.  Fees there are based on the value of the service provided to the client, rather than the time expended to complete the service. By Ramon Jimenez, Esq I have been saying this for two years now.  Clients have a general mistrust of hourly billing, said panelist Christopher Marston, whose firm, Exemplar Companies Inc., has successfully implemented a value-pricing model.  Fees there are based on the value of the service provided to the client, rather than the time expended to complete the service. According to Marston, this value-based approach to pricing is more inline with what clients want. While lawyers think in terms of increments of time, clients think in terms of value. “People are buying outcomes and solutions. They are not buying your time,” he said. Moreover, Marston believes the traditional time-based model of billing is flawed. The billable hour method is based on a perceived direct relationship between labor and the value, he explains. In other words, the more time a task takes, the more valuable it must be to the client. But—“If that were the case, the piece of coal you found next to a diamond would have the exact same value.” Marston also points out that the billable-hour method limits profits. “On every six minute increment of time, you’re making the same margin. The worst part of it is that you’ll never make [a] higher margin. You’ll always make a lower margin because clients can always cut your fees. They’ll never give you more. Billable hours cap that margin.” Exemplar’s value-based model starts with understanding the resources involved with each task at hand and determining a reserve price for those tasks. The reserve serves as the pricing floor. The firm then considers the value it adds to the transaction to determine its price. Understanding how much value it adds to the transaction is key to Exemplar’s price determinations. “You don’t want to give away value without reaping a reward,” said Marsten. For instance, clients who demand especially prompt service pay a premium for that attention. Similarly, fee arrangements that shift risk from the client to the lawyer also raise prices. For example, time-shifted billing methods—such as contingency arrangements where payment is only triggered by an event that is usually out of the firm’s hands—should always require a premium. “Where there is a ‘give,’ there should be a ‘take,’” said Marsten. “If you’re going to give the customer a contingency, then you need to price accordingly and command a premium because there will be a percentage of time you can’t collect.” Fee arrangements that are not based on time require lawyers to pay close attention to the scope of the projects they are considering. While lawyers may have control over creating the boundaries of their representation, the problem to watch for is “scope creep.”  “Put the scope on a tack board above your desk and make sure you are asking yourself the question, ‘Did the customer pay for this?’” advised Marsten, who said that scope creep happens most often when associates are doing the work of the engaging attorney. Beyond determining prices, lawyers considering non-traditional fee arrangements must observe ethical guidelines—not just the Model Rules, but also local rules and restrictions on fees that vary from one jurisdiction to another, cautioned panelist Margaret Raymond, a professor from the University of Iowa College of Law. Law Expertise, General, Capital, Business 2010-12-01T22:47:14+00:00 http://www.exemplarcompanies.com/site/the_case_for_trademarking_more_than_your_business_name/ http://www.exemplarcompanies.com/site/the_case_for_trademarking_more_than_your_business_name/#When:16:33:52Z By Mitchell A. Bragg As a business becomes better known for the products it produces or the services it renders, competitors will no doubt try to capitalize on the success.  However, many companies may not recognize the importance of utilizing federal trademark laws to protect more than just the name on the front of the building.By Mitchell A. Bragg As a business becomes better known for the products it produces or the services it renders, competitors will no doubt try to capitalize on the success.  However, many companies may not recognize the importance of utilizing federal trademark laws to protect more than just the name on the front of the building. For example, the names of specific products, specific features of products, and even specific services associated with a service business are potentially subject to protection under United States trademark law.  By federally registering these names, a business can help prevent others from capitalizing on the goodwill of a successful business concept. According to the United States Patent and Trademark Office (USPTO), “A trademark is a word, name, symbol, or device that is used in trade with goods to indicate the source of the goods and to distinguish them from the goods of others.”  While a service mark is similar to a trademark, it instead “identifies and distinguishes the source of a service rather than a product.” While there are many factors that may go into the registration of a trademark, there are two primary factors analyzed in determining whether you will be able to register a trademark alongside a competitor’s mark:  1) the similarity of the marks; and 2) the commercial relationship between the goods and/or services listed in the registration of the mark. If the USPTO does register your mark, several important documents must be filed in order to establish continued federal protection.  However, if these documents are filed in a timely manner and not subject to opposition, your mark can be protected indefinitely in the U.S.  Registration of a trademark with the USPTO can help prevent others from capitalizing on the goodwill that you have built up around a specific line of products/goods or services. It is important to note that registering a trademark will not necessarily prevent others from taking the product concept behind the mark itself.  However, it will help to protect your business from others seeking to utilize a confusingly similar name for the same or similar goods. This means that if your company registers the trademark “Carstonites” for blue widgets, a competitor will arguably not be able to register or sell the same blue widgets under the name “Marstonites.”  However, trademark laws do not prevent competitors from producing or selling blue widgets in general.  They may be prevented under patent law though.  The same is true for a business that renders services to its customers.  A valid federal trademark or service mark registration can help protect the name of your business concept. Further, if you are in the business of inventing products or services, it is important to use names that are not confusingly similar to others currently in the market place.  For example, if there is a sports drink currently on the market named “Energy Life” and it is federally registered, your business would arguably not be able to register, or potentially even sell, a sports drink named “Life Energy,” at least not without a fight from the preexisting competitor. Just because you accidently came up with a similar name to the competition’s product does not mean you will necessarily be able to use it.  This means that you may be prohibited from using a very creative name because it is too similar to that of a competitor who began using it earlier.  Also, just because you think your product name is original does not mean someone else has not already registered it with the USPTO. The above comments are merely an opinion and meant to give potential inventors and companies insight into what is involved in the case of registering a trademark or service mark.  It is not exhaustive and certainly does not cover the plethora of other considerations to be taken into account when registering a mark with the USPTO. General 2010-05-10T16:33:52+00:00 http://www.exemplarcompanies.com/site/film_financing_-_tips_5_private_equity/ http://www.exemplarcompanies.com/site/film_financing_-_tips_5_private_equity/#When:04:37:41Z The single hardest task in producing films is financing them and, when it comes to financing them, you always need an element of private equity.  There are many ways to raise private equity, some involve friends and family, and others involve private placement offerings and even crowd funding—- with each method, the costs associated versus the rewards, also vary wildly. The single hardest task in producing films is financing them and, when it comes to financing them, you always need an element of private equity.  There are many ways to raise private equity, some involve friends and family, and others involve private placement offerings and even crowd funding—- with each method, the costs associated versus the rewards, also vary wildly. Private placements, can cost thousands of dollars whereas borrowing money through loans, credit cards and personal relationships carrys a heavy weight of responsibility and can potentially create an outcast of you, especially if your film isn’t the success you want it to be, and most films aren’t. Each method of raising private equity to produce your film should be considered seriously and if in doubt, the services of a professional should be engaged.  If for no other reason than to give you a reality check, as well as to protect yourself and those you are soliciting investment from. In deciding what direction you are going to fund your film, your first consideration should be the budget of your film and this is going to be decided to some extent by your screenplay, which in turn is driven by your desire to make a particular type of film. Ask yourself: Will it be a small set piece with limited actors, such as ‘Death and the Maiden’ or ‘44 Inch Chest’, or a special effects extravaganza such as ‘Avatar’?  Since this post is not aimed at James Cameron but at independent producers who have most likely never produced a film before, I think we can safely assume that we are talking budgets of less than $2m, and in all likelihood sub $1m. So, the question becomes, Where are you going to raise this kind of capital, and How are you going to do it?  The most likely method is a private placement memorandum (PPM), a Securities and Exchange Commission (SEC) document, which is required when soliciting investment from accredited investors. These should only be prepared by a securities attorney and a business plan is usually needed to accompany such a document, especially prior to engaging such legal services.  Many people ask me why? and the simple answer is, “because the PPM is the legal fluff surrounding the business plan”.  The business plan is what will convince investors the investment opportunity is a good one and that you are doing everything you can to mitigate the risks on their investment.  (See my earlier blog on business plans. Investors want to know that you have done your research, that the management team spending their hard earned dollars can deliver a product that will sell and you have at least thought of an exit strategy to make their money back plus a healthy profit. Now should the PPM route be too costly for you, you should consider a couple of things, like, maybe the film business isn’t for you, because if you aren’t prepared to spend the money required to raise the capital for a film, then how can you expect investors who have the net worth to get your film made, to invest in you?  Also have you really thought through the entire process of producing a film from script to consumer, is there a market for your film? Just because ‘Blair Witch Project’ or Paranormal Activity’ were made on next to nothing and made small fortunes, it doesn’t mean your film will too!  For every one of those success stories, there are hundreds, even thousands that never made it “big”. That being said, we all have to get on the career ladder somewhere and not all of us can afford the costs associated with a PPM, we would much rather put that those dollars on the screen.  A person’s passion, drive and the support of friends and family have allowed many people to overcome insurmountable odds in the past and as long as you and those investing in you, whether its your local bank (unlikely) or your mother, father, brothers, sisters and credit cards (more likely) and yourself, are fully aware of the risks you are taking with their money, that (1) you do your research, (2) you just happen to be extremely talented, and (3) you can attract Brad Pitt to star in the film you are making for $10,000, then by all means go for it!  It might end up being an expensive lesson in film making, and then again it might just pay off and launch you to super stardom. The above comments are merely an opinion and meant to give potential producers some insight into what is involved in the case of raising private equity.  It is not exhaustive and certainly doesn’t cover the plethora of other considerations to be taken into account when producing a film and that lead to their success. For more information, contact Mark Andrews   Film Industry by the Numbers General, Capital 2010-05-02T04:37:41+00:00 http://www.exemplarcompanies.com/site/construction_contract_change_orders_get_it_in_writing/ http://www.exemplarcompanies.com/site/construction_contract_change_orders_get_it_in_writing/#When:04:33:47Z Change orders are a routine part of construction. No matter how much you try to plan ahead, you can never foresee every possible event. When work is altered, there is always additional cost and the additional costs can run as high as 10% of a construction budget.  Unfortunately, change orders are usually the most contentious issue amongst all parties: the designer, the builder, and the owner.  The general rule is that changes must be in writing. Change orders are a routine part of construction. No matter how much you try to plan ahead, you can never foresee every possible event. When work is altered, there is always additional cost and the additional costs can run as high as 10% of a construction budget.  Unfortunately, change orders are usually the most contentious issue amongst all parties: the designer, the builder, and the owner.  The general rule is that changes must be in writing. Most construction contracts contain a requirement that the contractor is entitled to extra compensation only if, the extras or changes to the original scope of the contract, are authorized in writing before the start of this work. The construction industry isn’t always about protocol, rather it’s about keeping the project moving. Thus, changes are often directed orally with the promise to put it in writing later. In order to minimize disputes over modifications based upon orally directed changes -maintain a written record of changes (such as, daily logs, time sheets, costs reports, schedules, letters, memos, emails, etc.). Failure to follow change order protocol can lead to substantial claims and litigation in the long run. Parties also should be aware that there are 3 exceptions (waiver, estoppel, ratification) to the written change order requirement.  It is presumed that a person knows their rights and that those rights are voluntarily relinquished if they are not asserted at the time. Thus, a waiver can result from oral statements or promises made by a person with actual authority which is intended to induce the contractor to perform extra work.  There must be evidence that the party based his actions strictly on the reliance of truth and that the party in so doing suffered damages. Estoppel requires the victimized party to show both inducement and detrimental reliance. Finally, we have Ratification which is an “after the fact” authorized approval of an unauthorized act. This approval creates a binding commitment that would not otherwise be binding in the absence of such approval. Although there are exceptions to the requirements of a written change order, the best practice should be to always get the change order in writing before commencing work, in order to avoid any possible future disputes and unexpected costs. For more information, contact Richard J. Schoenfeld, Esq.  General 2010-05-02T04:33:47+00:00 http://www.exemplarcompanies.com/site/avoiding_potential_violations_of_the_foreign_corrupt_practices_act/ http://www.exemplarcompanies.com/site/avoiding_potential_violations_of_the_foreign_corrupt_practices_act/#When:04:13:40Z Your sales agent in Sao Paulo just called with good news: You’ve won that government contract. You just need to wire $15,000 this afternoon for a “license fee” in order to close the deal. Sounds simple enough, but be careful: You might just be walking into a violation of the Foreign Corrupt Practices Act. Your sales agent in Sao Paulo just called with good news: You’ve won that government contract. You just need to wire $15,000 this afternoon for a “license fee” in order to close the deal. Sounds simple enough, but be careful: You might just be walking into a violation of the Foreign Corrupt Practices Act.   Background: The Foreign Corrupt Practices Act (FCPA) was enacted in 1977 to curb the competitive abuse of influence payments to foreign officials in order to secure or retain business. In the prototypical case, a bidder seeking the award of a government contract for goods or services uses a covert payment or gift in order to curry the favor of an official who has influence over the award. Being sensitive to this legal exposure and responding appropriately are keys in avoiding a costly violation. Elements of the Act: The FCPA applies to all U.S. persons and any foreign national that issues securities in the United States or files periodic reports with the SEC. In addition, any foreign national that commits an act within the U.S. in furtherance of an improper payment is subject to the Act. Acts which violate the FCPA include the delivery of anything of value to a foreign official with the intent to induce the official to act favorably in support of the securing or retention of business.  This need not be business with the foreign government and the attempt to induce action need not be successful. Although “corrupt intent” is an element of a violation, conscious disregard or deliberate ignorance of the acts of your representatives will in most cases satisfy this element as well. The concept of “foreign official” includes a foreign political party, a party official and even a candidate for public office. Routine payments to obtain licenses, permits or other official documents, or for the processing of government documents are regarded as “facilitating payments” and do not violate the Act. However, the nature and purpose of any requested payments should be fully understood before proceeding. Enforcement & Penalties: The SEC and DOJ have concurrent authority to enforce the FCPA. Violations may be treated as civil or criminal (or both). Criminal penalties imposed against business entities are up to $2 million and against individuals of up to $100,000 with imprisonment of up to 5 years. The Alternate Fines Act can increase these fines to twice the benefit the violator sought to obtain. Civil penalties may be up to $10,000; however, in civil actions by the SEC, significantly greater fines can be imposed based on the gain received. Injunctions may be imposed against violators a well as loss of export licenses and the ability to do business with the U.S. government. Improper acts may trip additional violations such as mail fraud, wire fraud and state commercial bribery statutes. Because the failure to record such payments is a separate violation of the Act, “off book” and “slush fund” accounting can involve a violation of the Sarbanes-Oxley Act.   Foreign Legislation: U.S.-based enterprises and individuals are not the only ones subject to legal action for the kinds of acts prohibited by the FCPA. In 1997 the Organization for Economic Cooperation and Development adopted a convention to combat the bribery of foreign officials. Thirty-eight (38) countries have ratified this convention. Examples: Some recent, very blatant violations of the FCPA have gotten the attention of regulators. In March 2010 BAE Systems plc, one of the world’s largest defense contractors, plead guilty to alleged violations of U.S. trade and export laws including FCPA in a criminal proceeding initiated by the Department of Justice. Using offshore companies and “market advisors”, BAE issued payments to officials in order to secure government defense contracts in Saudi Arabia, The Czech Republic and Hungary. BAE was required to pay $400 million in fines. In the largest case of its kind, the SEC and DOJ brought companion civil and criminal proceedings against Siemens for an alleged systemic practice of paying bribes to foreign officials to secure business in Venezuela, Mexico, Israel, Bangladesh, Argentina, Vietnam, China and Russia during the period 2001-2007. Products and services involved included medical devices, identity cards, power plants, refineries and a mobile telephone network. The combined sanctions imposed against Siemens were $1.6 billion. Fines and prosecutions under FCPA in the last 10 years exceeded those occurring over the prior 20 years, suggesting that the authorities are becoming more vigilant in their enforcement efforts. For more information, contact Greg Murrer, Esq.   General 2010-05-02T04:13:40+00:00 http://www.exemplarcompanies.com/site/100-day_integration_planning_starts_during_pre-acquisition_due_diligence/ http://www.exemplarcompanies.com/site/100-day_integration_planning_starts_during_pre-acquisition_due_diligence/#When:18:01:42Z M&A transactions require a great deal of energy and focus by all parties and their counsel. However, ineffective Business Integration can spoil even the best of negotiated deals. Don’t let poor Integration planning or weak execution ruin your profit expectations for an acquired business. BACKGROUND: Post-acquisition business integration should be considered from two aspects: (1) the integration of human capital; and (2) the integration of operations and systems. Although both are interrelated, Human Capital Integration has an emotional component which if not addressed with a reasonable degree of forethought and compassion, can quickly poison the relationship between the employees of the target and the acquirer’s management.  Operations & Systems Integration should run in parallel with Human Capital Integration and includes the more mechanical melding the target’s internal business practices with those of the acquirer so that functions such as communications, financial reporting, ordering, invoicing, manufacturing/service processes, security, policies and practices operate in the manner that the acquirer intends. This “melding” may range from maintaining the target’s status quo to a complete replacement of O&S, extinguishing this aspect of the target’s corporate identity though the wholesale installation of the acquirer’s O&S. ADVANCE PLANNING: Effective business integration does not begin on the day the target is acquired. It must begin at the earliest possible stage of pre-sale due diligence. When the likelihood of deal completion becomes reasonably certain, this is the time to move integration planning forward. Granted this timing is more art than science and may be for naught should the transaction not close; however, to wait any longer enhances the likelihood of an unhappy marriage of the businesses. Select an Integration Manager – Skills: Planning, Credibility, Integrity, and Communications. The “IM” must be involved with due diligence at a very early stage – to learn the target business and its culture. Reporting should be at a very high level (CEO, Executive Sr. Management, Board) to ensure respect and gravity. Select an Integration Team – The “IT” needs to have the correct disciplines represented: Accounting, Finance, HR, IT, Legal, Payroll, Sales and Manufacturing. It’s important to have members from BOTH SIDES of the transaction as soon as that is feasible. Decisions to be Taken Prior to Acquisition – Need to consider how the target’s employees are going to be impacted from a job, reporting and compensation/benefits standpoint: 1. Determine new business organizational structure 2. Determine new leadership and other human infrastructure issues, including reporting relationships 3. Assess if all or any part of the target operate independently 4. Determine compensation and benefits structure and how this will change for target’s employees 5. Identify stayers and goers to the extent possible 6. Determine employee exit arrangements Not all employee-related decisions can be determined prior to closing. Often employee performance and compatibility can only be evaluated through post-acquisition observation. Hasty human capital decisions can breed contempt. At the same time, dissent and incompatibility cannot be allowed to fester. The human capital component of the Integration Team should therefore move in an expedient and even handed manner. Need to consider the extent to which the target’s Systems & Operations will be retained and conversely, the extent to which the acquirer’s Systems & Operations will be installed: 1. Assess the adequacy and compatibility of target’s S&O with the acquirer’s 2. Identify which of target’s S&O will be retained 3. Identify which of target’s S&O will be replaced or absorbed into acquirer’s S&O 4. Consider implications of these changes to staffing and reporting 5. Set out a preliminary timeline for each change Processes to be Developed Immediately Prior to Acquisition – These must be ready for launch upon the day of acquisition: 1. Communications Plan: Q&A Forum; Point of Contact, Communication Channel, Q&A vetting process that is expedient yet accurate and consistent 2. Anticipate Q&A and vet matters in advance – brainstorm with all disciplines 3. Overall Integration Plan by discipline, line of business, grouping or other as applicable 4. Integration Time Line by functional area 5. Consistent, transparent process for making employment-related decisions (retention, promotion, open positions, compensation) 6. Handling of layoffs resulting from business consolidation, redundancy   IMMEDIATELY AFTER CLOSING – START OF THE 100-DAY INTEGRATION PERIOD Communication, Communication, Communication – Implement your pre-ordained Communications Plan, which should include the following: 1. All-Hands Meeting – Announce the known, definitive decisions now; disclose the lines of communication for unresolved, open or unanticipated questions and Integration Time Line. 2. Written communication affirming what was disclosed at the All-Hands Meeting. This will avert confusion and dispute and reach those who did not attend. 3. Mind Reader’s Communication – Set out anticipated Q’s with definitive A’s in writing. 4. Regularly announce decisions as they are finalized through a consistent communication channel and/or updates. Regular written communication builds confidence and community. Questions that Absolutely Need to be Answered Quickly & Consistently – Timing of responses will be dictated by need and certainty: 1. Am I going to have a job? 2. How will my benefits be changed? 3. Who will I be reporting to? 4. What are the culture, expectations, and objectives of the new owner? 5. What are the positives of this acquisition for me? 6. If I’m going, what help (severance, outplacement assistance, etc.) will I get? Not all news delivered after the acquisition closing date will be good news for employees. It is best however to deliver bad news as early in this process as possible so employees can adjust to it. In addition, indecision, decision reversals or inconsistent messages damage credibility at a time when the need for credibility is paramount. Employees appreciate directness and honesty, even if the message is adverse. If a mistake is made, it is best to admit it, apologize and move on. Clear, concise communications will serve to squelch rumors and innuendo. ONGOING MAINTENANCE: Business integration is a continuous process throughout the 100-day period. Members of the Integration Team should meet regularly to assess progress and readjust go-forward activities. These meetings may be among particular disciplines; however, to retain a solid perspective, the whole Team should assemble periodically for collective updates. A periodic Integration Newsletter (or other means of formal communication) should be distributed among employees addressing submitted questions, clarifying any prior communications, dealing with misinformation, encouraging dialogue and documenting successes. This might be done weekly and later monthly as the process winds down. As previously noted, this communication needs to be controlled by a single point of contact to avoid inconsistency or mixed messaging. CONCLUSION: Ultimately it will be important to announce the formal end of the Integration Plan. This announcement tells the employees that changes are complete, allowing them to focus solely on the future of the business. Be sure to thank your employees for supporting a successful integration program. The Integration Team needs to be formally disbanded at this time. Rewards for their good work should be considered. Remember, they have been implementing the Integration Plan in addition to doing their normal jobs. General 2010-04-30T18:01:42+00:00 http://www.exemplarcompanies.com/site/tough_times_call_for_making_sure_you_have_the_right_law_firm/ http://www.exemplarcompanies.com/site/tough_times_call_for_making_sure_you_have_the_right_law_firm/#When:04:20:05Z When I read this ABA Journal article regarding the demands of In-House Counsel, I was struck once again by how outdated the traditional law firm is.  In describing the effort by some firms’ general counsel (or “GC”) to reduce the amount of money they spend on outside counsel, the author points out that, “[t]oday’s GCs are key strategists.”  The clear implication here is that outside counsel are not strategists.  Further, one GC is quoted as stating what to us here at Exemplar is patently obvious: “The hourly rate may be an outdated approach for us and not sustainable.”  Indeed. When I read this ABA Journal article regarding the demands of In-House Counsel, I was struck once again by how outdated the traditional law firm is.  In describing the effort by some firms’ general counsel (or “GC”) to reduce the amount of money they spend on outside counsel, the author points out that, “[t]oday’s GCs are key strategists.”  The clear implication here is that outside counsel are not strategists.  Further, one GC is quoted as stating what to us here at Exemplar is patently obvious: “The hourly rate may be an outdated approach for us and not sustainable.”  Indeed. Much ink has been spent on the layoffs in the legal profession, the downsizing of the large firms, and the difficulty for new grads in finding jobs.  There is a simple reason for all of this: The services that traditional law firms provide and the manner in which they provide them is not valuable. But there is also a reason why Exemplar is growing by leaps and bounds amidst all this trouble in the profession.  We add value.  That’s it.  No bull, no fiddling with time clocks, no mess. That basic mission is easy to understand and communicate, and I had the privilege the other day of explaining to a potential customer how we do business.  I mentioned to him that we understand that he does not care how much time it takes us to complete a job so long as it is done by the deadline and is of superior quality.  He agreed.  I continued by saying that we would give him predictability in his budgeting and guarantee our work.  He laughed and said he and others in his profession had given up on attorneys, preferring to do their legal work themselves precisely because they could never predict how much the lawyers were going to cost.  I finished by saying that, unlike others, we prefer to strategize with customers up front so that we can keep costs down in the long run. Again, he smiled, half-exasperated and much impressed.  “It’s about time attorneys changed their business model.” That time has come. Do you have the right law firm? General 2010-04-13T04:20:05+00:00 http://www.exemplarcompanies.com/site/nfl_collective_bargaining_agreement_is_status_quo_good_enough/ http://www.exemplarcompanies.com/site/nfl_collective_bargaining_agreement_is_status_quo_good_enough/#When:17:13:55Z Will an $8.5 billion dollar industry be put on hold in 2011? By Bryan Natale, Exemplar Law Will an $8.5 billion dollar industry be put on hold in 2011? The NFL Collective Bargaining Agreement (CBA) expires next March as the 2010 season marks the “Final League Year” of the existing CBA and the likelihood of a 2011 lockout grows with each passing negotiating session.  In fact, the issue is so real that, in a recent letter to all NFL agents and player representatives, the NFLPA is encouraging players to place up to 60% of their performance-based pay check into a personal account.  In addition, the NFLPA has suggested that an additional 25% of 2010 paychecks be put into the same account. The way things stand today, only two things are certain at this time: we will have NFL football in 2010 and there will be a draft in 2011. So what stands between the NFL and the NFLPA? To no surprise, the most contentious item on the table is the numbers.  According to the NFLPA, the players, under the existing CBA, receive approximately 52% of the revenue pool.  However, the NFL represents that the players receive 60% of the revenues.  Although the NFLPA is content with the terms of the existing CBA, the owners of the NFL are vehemently opposed to the existing CBA which is why they opted out of it last spring, as was their right under the bargained rules. According to sources the NFL, in its proposal to players, would like to trim the portion of revenues going to players by 18%.  The owners argue that the players receive 60% of the revenues and the owners assume 100% of the costs.  Further, the owners claim that the money they have put into new stadiums and facilities, coupled with skyrocketing player costs and a down economy, makes the business model currently in place almost impossible to maintain. To push back on the owners, the NFLPA has requested that the owners open up their financial books in an attempt to justify the cut.  The NFLPA argues that until the owners agree to more substantial disclosure of the financial records and business operations, the NFLPA is hard-pressed to submit a counterproposal to the 18% cut that adequately protects the players and is justified. Although the “Final League Year” has other implications, including an uncapped 2010 season, substantial additional restrictions on player free agency and reductions in player benefits, the red flag remains how big a piece of the pie the players take home.  Until the gap is narrowed between the NFLPA and the NFL, the game clock will continue to click. On the bright side, there are some things that are agreed upon in the negotiating sessions. Both sides want to see some form of cap on rookie spending and more money diverted back to veterans and retired players. The NFLPA’s model would make players free agents after three years in the league, limit rookie spending and put $200 million back into the player pool for established players.  Despite the contentious hot items still being negotiated, there is at least some common ground. But let’s be honest, all of this back and forth is nothing new. It is simply part of the game, and it’s endemic to any pro sports league going through a long negotiation. Although there is sufficient time left to get a new CBA together, grave concern is warranted if in the spring of 2011 everything continues to stall.  But for now, expect more of what we’ve seen the last few months – a bitter game of tug of war. General 2010-04-12T17:13:55+00:00 http://www.exemplarcompanies.com/site/exemplar_colorado_open_for_business/ http://www.exemplarcompanies.com/site/exemplar_colorado_open_for_business/#When:19:18:03Z Colorado’s business landscape is about to change. Exemplar, the innovator in fixed, value-based pricing for legal, business consulting, and capital advisory services, is targeting Colorado for its next strategic move. FOR IMMEDIATE RELEASE Contact: Luke Korkowski Telephone: 720-837-2802 Email: lkorkowski@exemplarlaw.com EXEMPLAR COLORADO OPEN FOR BUSINESS Innovative Business Law and Consulting Firm Sees Opportunity in the Rocky Mountain Region Denver Metro Area, CO - Colorado’s business landscape is about to change. Exemplar, the innovator in fixed, value-based pricing for legal, business consulting, and capital advisory services, is targeting Colorado for its next strategic move. Spearheading the effort is Luke Korkowski, an experienced Colorado transactional attorney and business consultant. "The vibrant business environment in Colorado presents an excellent opportunity to serve customers looking for firms that do business differently," Korkowski said. "The startup market is more active than you would expect, given the state of the economy, and there is an impressive community of CleanTech and LOHAS (Lifestyles of Health and Sustainability) experts in the area." Korkowski continued, "Because of the active startup community, Revolve seems to be of particular interest to potential customers." Revolve is Exemplar’s subsidiary that focuses exclusively in the startup arena. "However, Colorado also boasts a large sector of mature, mid-market companies, making for a hospitable environment for Exemplar to offer its services." "There is almost no limit to the number of Colorado companies that are grasping for high-quality professional advice that comes at a known, fixed price,"Korkowski said. "We are delighted to fill that role." More information is available at Exemplar’s website, http://www.exemplarcompanies.com, and at Revolve’s website, http://www.RevolveThis.com. General 2010-04-11T19:18:03+00:00 http://www.exemplarcompanies.com/site/film_financing_-_tips_4_know_your_craft/ http://www.exemplarcompanies.com/site/film_financing_-_tips_4_know_your_craft/#When:18:19:09Z The following may seem obvious to some, or for that matter a soap box, but then again it may not—the reality is whether your a producer, a director, a screen writer or any other fundamentally crucial craft in the business of film making, and you want to be in the top 5% of successful professionals, you need to know your craft and know it well.  In fact not only should you know your craft, you should go out of your way to at least understand the other fundamental roles key to bringing a film to fruition. The following may seem obvious to some, or for that matter a soap box, but then again it may not—the reality is whether your a producer, a director, a screen writer or any other fundamentally crucial craft in the business of film making, and you want to be in the top 5% of successful professionals, you need to know your craft and know it well.  In fact not only should you know your craft, you should go out of your way to at least understand the other fundamental roles key to bringing a film to fruition. Why? Well first of all, understanding the other roles around you will help you not only appreciate their positions but also help you work with them better and in a more cohesive way.  Likewise, if they are of the same mindset, then they also will appreciate the trials and tribulations of your role.  If you’re having a bad day, unable to meet a deadline, or trying to make a deadline, then both they and you will understand each other’s points of view, which will make the frustration not appear to be as apparent, and you both will be able to offer some valuable help that will get the job done better and more efficiently.  Imagine that you are a producer dealing with a director with a problem on set or in the edit suite, being able to understand their position, and making constructive creative comments will usually win your points. What about if the roles are flipped, and you are the director in discussions with a producer, you might just be more understanding to the reasons why the producer isn’t letting you “run amok” with the stock, or why they’re saying no to the helicopter shot, thus making you more constructive with your decisions and sensitive to things like cost limitations.  It really doesn’t take much effort to be informed about the fundamentals of other peoples’ roles; there is a plethora of books, courses, and freely available knowledge on the web for those who truly care about doing the best job they can, and interacting with their colleagues in an efficient and understanding manner.   Film Industry by the Numbers General 2010-04-03T18:19:09+00:00 http://www.exemplarcompanies.com/site/film_financing_-_tips_3_business_plans/ http://www.exemplarcompanies.com/site/film_financing_-_tips_3_business_plans/#When:03:29:02Z One of the most under-valued, and for that matter, under developed tools in film financing,  are business plans.  For the most part this is because independent film makers don’t have a corporate or business background, and they simply rely on what they read or the advice of an uninformed few in putting these important business documents together.One of the most under-valued, and for that matter, under developed tools in film financing,  are business plans.  For the most part this is because independent film makers don’t have a corporate or business background, and they simply rely on what they read or the advice of an uninformed few in putting these important business documents together. It is exceptionally important to make sure that you have done your research before putting a business plan together for your film, because you want to present the most compelling argument for any investor to invest in you.  To that end, you must start by having a film project that has a higher than average chance of being made, which means attracting talent that will produce the sales numbers that will show an investor he has a reasonable chance of not losing his money.  This is really comes down to development but in the event that you have such a project, you can begin attracting the talent to support your end goal. Use your exceptional script to attract the interest of a select few senior management, a reputable co-producer (if you aren’t one already), as well as: a director, a director of photography and a line producer with great track records—- once you have achieved this stepping stone, use them as a portfolio to attract your actors.  Afterall, actors see the project as more attractive, and they are more likely to come on board a project that has a reputable team at the helm. Assuming you have gotten this far, you can begin to create your business plan with at least some of the tools and personal skill that will make your investment opportunity, “somewhat compelling” compared to the plethora of others that aren’t. Some of the key ingredients to a good business plan that investors will be looking for and I rarely see are; accurate sales projections from a reputable sales or distribution company, a full budget breakdown and a solid finance breakdown showing how the project is to be funded, and how the risk to capital will be mitigated. The above elements are rarely ever included in business plans because they aren’t easy or cheap to get—- you usually have to pay for a schedule and budget to be created, which means paying a line producer a few thousand dollars for their time. A solid financing plan that stands up to scrutiny usually requires a depth of knowledge that few independent producers possess—- nevermind the fact that sales numbers cannot be realistically achieved without working relationships with those companies. A project that has talent attached or a reasonable chance of attaching usually has a better chance of obtaining financing, but without having a solid business plan to attract that talent, your project may not even be able to get underway. However, on the assumption that you can achieve much of what is proposed above, ensure you have the following information in your business plan and you will have a better than average chance of attracting an investor’s sense of adventure.  A disclaimer, an Executive summary (a high level view of your business plan - 1-2 pages), creative overview of the project, log-line, synopsis, management team bio’s, bio’s of the actors attached or proposed, a current industry overview, a sales and distribution plan for your film, comparison films with accurate numbers that are not just achieved by pulling them from site like imdb.com or boxofficemojo.com, a budget breakdown, sales estimates and information about the company providing them, proposed schedule of events, financing, pre-production, production, post-production, sales and distribution, section on risk mitigation and risk warnings. This list is by no means exhaustive, and, if in doubt, the services of a professional should be sought in putting your business plan together.  Remember, you usually only get one chance to impress an investor and you want to present to them the best opportunity you can.  Give them no reason to say NO. Good luck Mark Andrews   Film Industry by the Numbers General 2010-03-14T03:29:02+00:00 http://www.exemplarcompanies.com/site/please_tell_me-where_are_the_basics_come_on-_just_5_common_sense_rules/ http://www.exemplarcompanies.com/site/please_tell_me-where_are_the_basics_come_on-_just_5_common_sense_rules/#When:03:22:48Z Your telephone etiquette says volumes about your company, and the care it takes with its customers.  The caller draws distinct impressions with regard to what kind of organization they are working with, their operations, their professionalism, and the quality of the staff.  Many times, it is the first impression a customer gets that helps pave the way to a successful relationship.  That being said-Your telephone etiquette says volumes about your company, and the care it takes with its customers.  The caller draws distinct impressions with regard to what kind of organization they are working with, their operations, their professionalism, and the quality of the staff.  Many times, it is the first impression a customer gets that helps pave the way to a successful relationship.  That being said-  I can’t tell you how many times I have placed a business telephone call only to be answered by the person on the other end with the grace of a gorilla in heat.  A recent call placed to an organization in the Midwest drove home the message of how good (or not so good) the first impression can be.  It went like this: Trying to talk to a human being was easy enough.  From there it all went downhill.  First the individual answered the phone and very quickly stated their opening greeting.  I could not understand the person, because besides talking very fast, they were talking as if they had marbles in their mouth. I also had to ask the individual to repeat their name.    Since my initial interactions were at best below par, and certainly well below the quality I would want my own company to be presenting, I have drafted the following telephone etiquette rules that customer service individuals should keep in mind—- rules which must be implemented to ensure that a quality impression is being placed in the minds of every customer who calls your company looking for assistance.  Etiquette Rule #1- Make sure you speak clearly and identify your organization and yourself.  Understand how you are coming across to the individual on the other end of the telephone.  Always use a pleasant and friendly tone. “Hi, you have reached ABC customer service, this is John H. speaking. How can I help you”?  During my phone call, and as I began to speak about what the issue was that I was calling about, I was interrupted by the representative, indicating “Sir I cannot help you unless you give me a case number”. Now understand it was not a polite interruption but rather a brash “take that” type remark!  Telephone Etiquette Rule #2- Do not interrupt the person while he/she is talking to you. For example, a simple, “I can help you, do you have a case number that I can reference” will convey a real “can-do” attitude and professionalism.  During my call, after I provided the case number, I stated the reason why I was calling, and gave details of the issue.  The representative then told me: “Hold on you will need to speak with a supervisor” and I was put on hold.  “Hello?”  (Silence) … Nice.  Etiquette Rule #3- Before placing a caller on hold let them know the reason why, and ask the caller if it is ok. For instance, “I will need to have you speak to a supervisor, may I place you on hold and have one assist you?” would suffice.  Let’s continue- Now I hear ringing, and then get the automated recording that all lines are busy.  You know the drill.  After a while, a representative answers, and I begin all over again.  After a few questions, the representative says “We will have to check further into this and someone will call you back.”  I do not get a good feeling about how my issue is going to get resolved.  Did you get the key word “someone”?—- I get transferred to a supervisor, they listen to the issue, and now “someone” will have to call me back.  I had to ask several questions as to what was happening with the issue and why they needed to call me back.  More questions, and finally, I think I understand.  Etiquette Rule #4 – When further research is needed, the customer service representative should nicely explain why it will take more time, and reassure the caller feel that the problem is owned, and things are in control. For example, a possible response might be: “I am going to need to check with our accounts payable area to see how they wish to process this. May I have a telephone number that you can be reached at?”  Finally, after speaking with a supervisor and finding that I should hear something back from “someone” within 24 hours, I said “Thank you”.  The supervisor say’s “You’re welcome”, and immediately hangs up the line.   Etiquette Rule #5- When hanging up and completing a call, make sure the caller hangs up first, and make sure you send them off with an understanding that they will actually be called back.  Make the caller feel like their issue is going to receive its necessary attention. For instance, the representative might say, “I will make sure this is followed up with, and you will receive a call back in 24 hours.  If you have any other concerns please feel free to call me”.  So now ask yourself this question?  What do you think my impression of how this company is and its management?  What is your impression?  Simple telephone rules.  They say so much about an organization, its customer care, and how professional they are.  They seem so basic and yet many times are not followed. I know there are more rules, but let’s start with the basics first! (Please)  Steve Monticone General 2010-03-14T03:22:48+00:00 http://www.exemplarcompanies.com/site/positioning_business_to_succeed_in_the_low_carbon_economy_a_climate_change_/ http://www.exemplarcompanies.com/site/positioning_business_to_succeed_in_the_low_carbon_economy_a_climate_change_/#When:19:12:29Z The Boston Harbor Hotel was the location of a regional summit focusing on the impacts of climate change on all aspects of business. This all-day climate change summit on Friday, February 12, featured a speaker from the EPA, policy makers from the six New England states, and prominent business leaders. The speakers dished out perspectives on how businesses can position themselves to benefit from state and national energy and environmental initiatives. The message of the day for businesses: Vision and values give a company a sense of direction, but long-term success depends on embracing sustainable business practices. Global climate change is accelerating and sustainable business will depend not only on being very finely tuned to these changes, but also being expert in understanding how they interact and tangibly affect our economy. By Mary Beth Ayvazian, Esq. The Boston Harbor Hotel was the location of a regional summit focusing on the impacts of climate change on all aspects of business. This all-day climate change summit on Friday, February 12, featured a speaker from the EPA, policy makers from the six New England states, and prominent business leaders. The speakers dished out perspectives on how businesses can position themselves to benefit from state and national energy and environmental initiatives. The message of the day for businesses: Vision and values give a company a sense of direction, but long-term success depends on embracing sustainable business practices. Global climate change is accelerating and sustainable business will depend not only on being very finely tuned to these changes, but also being expert in understanding how they interact and tangibly affect our economy. The US is lagging in the fight against climate change and may lose its place as a world power as a result of it. One of the most crucial battles the United States faces against climate change is its struggle for energy independence, public officials and private business leaders agreed. The U.S. must pull the reins on foreign oil for the sake of the nation’s national security. But energy independence also means job security, something weighing heavy on the minds of Americans as the national jobless rate continues to creep higher. “We’ve already lost our competitive advantage,” was the stark statement posited by Thomas King, CEO of National Grid, an international energy delivery company. In the U.S., National Grid delivers electricity to approximately 3.3 million customers in Massachusetts, New Hampshire, New York and Rhode Island, and operates the electricity transmission and distribution network on Long Island, serving an additional 1.1 million customers. Mr. King also said that the scientific debate on climate change “needs to end, and bold leadership is called for to move the United States forward in a sane march toward energy independence to catch up with China and major European countries. Numerous participants commented that given the risks involved in new business investments, reliance on governments and regulatory agencies doing the right thing is not enough. They could fail. Or institute restrictions on commerce that are unfriendly to businesses. Companies need help in understanding greenhouse gas regulations and policies; obtaining grant and loan information for new energy and energy efficiency technologies; interpreting existing SEC disclosure requirements as they apply to business or legal developments relating to the issue of climate change; and in general, maximizing their opportunities while mitigating their risks. In addition to legislative and administrative policy-making, companies need to be apprised of the judicial rulings in the climate change arena. Companies not paying attention to the courts and the potential impact on their businesses should think again as there have been a few important cases in the last few months which pave the way for the viability of nuisance claims relating to climate change impacts. In Connecticut v. American Electric Power, 2009 WL 2996729 (2d Cir. Sept. 21, 2009), the 2nd Circuit court allowed lawsuits to proceed against utilities that allegedly emit 10% of America’s man-made greenhouse gases. Under federal nuisance theories, the plaintiffs seek an injunction forcing the utilities to cap and then reduce emissions. The 5th Circuit similarly ruled in Comer v. Murphy Oil, 2009 WL 3321493 (5th Cir. Oct. 16, 2009),  that Gulf Coast residents and property owners could sue numerous energy, fossil fuel, and chemical companies for Hurricane Katrina’s havoc. Although, we don’t yet know the eventual outcomes of these cases as an appellate decision that a complaint meets the low threshold for survival does not go so far as to uphold a verdict or injunction, a door has been opened, and companies should be looking to their own policies and compliance issues to mitigate against possible lawsuits that disrupt and cost thousands and thousands of hours and dollars to defend. For more information, please contact , Exemplar Law Partners, LLC. General 2010-02-15T19:12:29+00:00 http://www.exemplarcompanies.com/site/tax_another_business_expense/ http://www.exemplarcompanies.com/site/tax_another_business_expense/#When:02:24:03Z In the world of business, especially in today’s economy, it’s the “survival of the fittest” elimination process which weeds out the weaker companies from the sea of competitors. One of the key “separators” is cost management.  A company’s ability to critically analyze and effectively manage its business expenses is its competitive advantage. Although each industry carries its own costs, there are certain expenses that every for-profit business must account for. One of the standard cash out-flows is taxes. But are taxes really a business cost? Taxes share some of similar characteristics with other traditional costs, such as advertising and R&D, but they also have distinguishing features. By: Emily Dunn In the world of business, especially in today’s economy, it’s the “survival of the fittest” elimination process which weeds out the weaker companies from the sea of competitors. One of the key “separators” is cost management.  A company’s ability to critically analyze and effectively manage its business expenses is its competitive advantage.  Although each industry carries its own costs, there are certain expenses that every for-profit business must account for. One of the standard cash out-flows is taxes. But are taxes really a business cost? Taxes share some of similar characteristics with other traditional costs, such as advertising and R&D, but they also have distinguishing features.  One of the main similarities taxes and other business expenses share is that they are a necessary cost of simply doing business. Effective planning and management of all of your company’s operating costs will increase predictability, cash flow, and ultimately, your company’s bottom line. In addition, in order to ensure your company’s profitability, taxes and business expenses must be built into the pricing structure. Finally, taxes can serve as an indicator of how well any company is being managed.  However, taxes are different from other business expenses in the following aspects: 1. Taxable income can be manipulated. Strategic tax planning provides a company the ability to reduce its effective tax rate lower than the unaltered income generating statutory tax rate. Many tools can be used to manipulate the company’s effective tax rate such as amount, rate, timing, character (ordinary or capital), and source (domestic or foreign). By outsourcing through a subsidiary, companies can improve their tax position with tax holidays and lower overhead. In addition, credits and deductions can be applied to lower taxable income such as foreign tax credits, deferral of taxes, accelerating deprecation deductions, and interest deductions. 2. When a tax expense appears on the company’s balance sheet, it does not carry the same quantifiable value as other business expenses (e.g. salaries, R&D, etc.). The reporting method is different for taxes than other expenses. On the company’s income statement, tax expenses can be found hiding in the footnotes providing details on where they were incurred, what the permanent deductions are (e.g. R&D credits) and when assets will expire. Taxes are also located on the company’s cash flow statement. 3. Effective tax planning brings “value” to the company. Make sure your company’s tax strategy correlates with your company’s business plan. By having these two plans match, your company is better able to justify its tax position on audit. 4. Taxes impact every aspect of business including: the form (e.g. corporation or partnership), location, financing (e.g. debt or equity), and method of acquiring equipment (e.g. lease or purchase). Unlike other business expenses such as salaries, which are predictable, taxes are more flexible. The sustained tax rate will indicate how well the business is being managed, and successful management of a company’s tax rate can pose as a positive indicator to potential investors. Since effective management of your company is an important responsibility, then having a tax strategy that works is a positive indicator for market growth. It is wise for every entrepreneur to learn how taxation works, how taxes affect the operations of the business, and to seek the advice of an expert to develop a business plan that incorporates your tax needs. Seek the proper tax advice to learn how you can successfully manage your company’s tax rate to make it a positive indicator of your business! For more assistance with managing your company’s tax rate, please ask our experts at Exemplar.  General 2010-02-12T02:24:03+00:00 http://www.exemplarcompanies.com/site/film_financing_-_tips_2_film_financing_finders/ http://www.exemplarcompanies.com/site/film_financing_-_tips_2_film_financing_finders/#When:23:57:22Z Finders are individuals who source finance for producers to get their film projects funded, but for the most part, they are rarely informed about the craft which they are being engaged.  By this, I mean that most finders are not “full-time finders”, but merely seizing on an opportunity that they consider may make them a quick buck.  Most finders usually have a full time job in finance, or are self employed in the film industry, and they happen to have made a few connections with some independent producers that need someone to find them money.   (By Mark Andrews) Finders are individuals who source finance for producers to get their film projects funded, but for the most part, they are rarely informed about the craft which they are being engaged.  By this, I mean that most finders are not “full-time finders”, but merely seizing on an opportunity that they consider may make them a quick buck.  Most finders usually have a full time job in finance, or are self employed in the film industry, and they happen to have made a few connections with some independent producers that need someone to find them money.  Their knowledge of film finance and the requirements of most investors is limited, and they usually don’t recognize their fiduciary responsibilities from either a legal or moral standpoint.  In the worse case scenario, should you be unfortunate to meet certain individuals, since they literally contract producers (or not), do little or no due diligence on both the producers side, or the financing sources sides, and they send project information out to prospective financiers without any legal right to do so in the hope of simply “getting lucky”. This of course can have serious ramifications for most individuals with film projects, since your project is now being passed around town to everybody and their mother, which naturally dilutes the very essence and value of the project.  Afterall—Who wants a project that everybody has seen, and what many may have passed on?! Not to mention, there are many legal ramifications of soliciting investment from investors without a license (which many finders don’t have). So what can you do to protect yourselves from the more unscrupulous individuals who serve to give the legitimate Finders or Executive Producers a “bad name”?.  Well first of all, you can do your own due diligence on them: find out and ask for proof of any films they have financed or produced and how they did so, ask for a formal contract and ensure that the terms of the contract are not unreasonable, make sure the contract provides for them to give you a list of the prospective financiers they intend to approach in the event you already know them.  Also, it would be wise to have your lawyer review the contract and make sure you are protected from any fall out between you and the finder because either the finder was not licensed, or some inadvertent warranty was made without your permission.  Finally, it would be wise to consider preparing a proper offering memorandum to be presented to legitimate equity investors. Alternatively, you can do your homework, learn about film financing and raising capital in addition to networking.  Hard work never hurt anyone, and learning to raise money for your film the hard way is both a rewarding and an invaluable skill to have.  Networking these days is easier than it’s ever been with social networking sites such as LinkedIN, Facebook and ASW to name a few, and if you are fortunate enough to live in Los Angeles (or not as the case may be ) there are more than a few social events to put on your calendar every week.  That aside, prepare a specific course about film financing, read books on it, retain the services of an entertainment legal professional or find a mentor with the experience you don’t have yet!   Film Industry by the Numbers General 2010-02-02T23:57:22+00:00 http://www.exemplarcompanies.com/site/reaction_to_haitis_natural_disaster/ http://www.exemplarcompanies.com/site/reaction_to_haitis_natural_disaster/#When:04:05:24Z Reaction to Haiti’s Natural Disaster (by Ben Doherty) We at Exemplar join with the rest of the world in offering our deepest condolences to those affected by the earthquake in Haiti. The ongoing human rights crisis following last week’s natural disaster is astounding. Thousands of people remain trapped within the rubble. Millions have been left homeless scouring the streets. Children suffer without food, water and the securities of home and family. The death toll is unfathomable. The Exemplar team applauds the efforts of the United States government, our military men and women, and countless medical and emergency response volunteers who are now in country helping with the response.  While we should be extremely proud of our country’s efforts and assistance and the generosity of thousands who have offered assistance in some way or another, let last week’s events serve as a reminder of how fortunate we are to live in the United States and enjoy its abundance of benefits.  Reaction to Haiti’s Natural Disaster (by Ben Doherty) We at Exemplar join with the rest of the world in offering our deepest condolences to those affected by the earthquake in Haiti. The ongoing human rights crisis following last week’s natural disaster is astounding. Thousands of people remain trapped within the rubble. Millions have been left homeless scouring the streets. Children suffer without food, water and the securities of home and family. The death toll is unfathomable. The Exemplar team applauds the efforts of the United States government, our military men and women, and countless medical and emergency response volunteers who are now in country helping with the response.  While we should be extremely proud of our country’s efforts and assistance and the generosity of thousands who have offered assistance in some way or another, let last week’s events serve as a reminder of how fortunate we are to live in the United States and enjoy its abundance of benefits. General 2010-01-21T04:05:24+00:00 http://www.exemplarcompanies.com/site/operations_and_customers/ http://www.exemplarcompanies.com/site/operations_and_customers/#When:02:07:19Z Organizations have many missions.  Among them is a paramount focus on pleasing the customer.  They measure satisfaction with surveys, pride themselves that they have great communication with customers and even ask for testimonials to show how happy their customers really are.  But, I think that for some operations folks (you know the ones that get involved in the nuts and bolts to help make organizations run), the customer can sometimes seem once removed and sometimes even more distant.  They may feel left out.  However nothing could be farther from the truth. Organizations have many missions.  Among them is a paramount focus on pleasing the customer.  They measure satisfaction with surveys, pride themselves that they have great communication with customers and even ask for testimonials to show how happy their customers really are.  But, I think that for some operations folks (you know the ones that get involved in the nuts and bolts to help make organizations run), the customer can sometimes seem once removed and sometimes even more distant.  They may feel left out.  However nothing could be farther from the truth.  Look at it this way.  For operations staff, your customer “is” your colleague, like the H.R. manager, or the admin down the hall and all of the individuals in your organization who need support each day. The service you provide contributes significantly to a successful organization.  It helps build confidence in the organization and promotes a “can-do” attitude.  The servicing of the “Internal customer” is just as important as the external ones because it extends itself outside the organization.  It helps make organizations run smoothly and contributes to revenue.  The rules for servicing internal customers should be no different than our external ones.  Treat everyone with respect, listen to the issue, ask questions that help bring clarity to a situation, get the right people involved, and always - always communicate the status of what action is being taken. You then need to follow up to insure the action taken, achieved the desired results. The care by which you show your internal customer how important you view them will help build a better organization and set the example for treatment of your external customers.  I’m always happy to say to my colleague’s “You’re my internal customer”. It tells them how important they are.  Let your professionalism shine through. Your customers - all of them, will be very pleased. General 2010-01-15T02:07:19+00:00 http://www.exemplarcompanies.com/site/domain_names_opening_open_qui_est_proprietaire_who_owns_it/ http://www.exemplarcompanies.com/site/domain_names_opening_open_qui_est_proprietaire_who_owns_it/#When:16:56:46Z The Internet is exploding as a means of international communication and commerce. Commercial entities and individuals may simply register and run an internet site with a distinct name that is accessible globally. It is a global commons where ideas, products, goods, and services are moved back and forth effortlessly with no need for passports and border crossings. However, it has been organized exclusively with Latin-based characters giving this global vehicle a decidedly Western bent - up until now. The first Internet addresses containing non-Latin characters from start to finish will soon be online thanks to the October 30th approval of the new Internationalized Domain Name (IDN) Fast Track Process by the Internet Corporation for Assigned Names and Numbers board (ICANN).  Prior to this change, domain names were restricted to Latin characters – the 26 characters in the English alphabet. What are the implications of an internationalized Internet for our customers? This move opens the market to an infinite number of domains and phishers, pirates, and scammers. There are trademark infringement implications, potential cyber pirating issues, and the thorny jurisdictional questions inherent in this borderless cyberworld. The Internet is exploding as a means of international communication and commerce. Commercial entities and individuals may simply register and run an internet site with a distinct name that is accessible globally. It is a global commons where ideas, products, goods, and services are moved back and forth effortlessly with no need for passports and border crossings. However, it has been organized exclusively with Latin-based characters giving this global vehicle a decidedly Western bent - up until now. The first Internet addresses containing non-Latin characters from start to finish will soon be online thanks to the October 30th approval of the new Internationalized Domain Name (IDN) Fast Track Process by the Internet Corporation for Assigned Names and Numbers board (ICANN).  Prior to this change, domain names were restricted to Latin characters – the 26 characters in the English alphabet. What are the implications of an internationalized Internet for our customers? This move opens the market to an infinite number of domains and phishers, pirates, and scammers. There are trademark infringement implications, potential cyber pirating issues, and the thorny jurisdictional questions inherent in this borderless cyberworld. The jurisdictional issues present a particularly challenging conundrum for Latin-based domain name holders. For example, if a “Domainer” (someone who snaps up thousands of potential domain names) snatches the Arabic version of Ben & Jerry’s website (www. بن اند جيري.com) and attempts to extort money from the US company (which also markets to countries in the Middle East) in exchange for the Arabic domain name, would the Anticybersquatting Consumer Protection Act (“ACPA”) apply to a foreign Domainer? Any first year law student can address the issue of personal jurisdiction and the long-arm statutes that can corral an entity and bind it to the court’s decisions. Even if a domestic court could assert personal jurisdiction, unless a foreign entity is motivated to make money within the United States (the United States is just simply too large of a market to dismiss or ignore its legal processes and risk being shut out of the market), a Domainer is unlikely to comply. Therefore, the best protection for global brands will be to purchase their IDNs as a preventative measure. Companies have worked diligently to create trademarks that make statements and appeal to prurient and other ego-driven interests of consumers. Consumer classifications and images associated with companies’ marks do not happen by accident. They are well thought out by the marketing strategists and billions of dollars depend on the public’s embrace of the image. Therefore, a lot of money and capital ride on protecting the companies’ reputation, marks, and business interests. Trademark law is designed to protect holders from those who would “pass off” and profit from someone else’s hard work and generation of good will. Passing off involves the use of a mark in ways that are likely to cause confusion as to the source of the product. In addition to protection from using a mark to cause confusion, trademark protects against dilution which are uses that blur a trademark’s distinctiveness. The Anticybersquatting Consumer Protection Act (“ACPA”) was enacted in 1999 to thwart the cybersquatters and pirates who register domain names containing trademarks with no intention of creating a legitmate website. Similarly, the Uniform Domain Name Dispute Resolution Policy (“UDRP”) was adopted by ICANN in 1999 to offer an alternative to litigation in local courts to settle complaints by trademark owners about cybersquatting.  Whereas trademark law permits multiple parties to use the same mark for different classes of goods and services or from different geographical areas, the current organization of the Internet permits only one use of a domain name, regardless of the goods or services offered or where each company is headquartered. For example, although two or more businesses can own the trademark “Ayvazian Sisters”, only one business can operate on the Internet with the domain name “ayvaziansisters.com”. But now, ayvaziansisters.com can appear in non-Latin characters. This obviously complicates the determinations made by courts based on the traditional tests used to determine trademark infringement and there is no global legal framework in place accepted by the international community and sanctioned by the US via the Supreme Court or Congress to deal with this complex jurisdictional issue. So, while the state of the law is uncertain, navigation through the legal minefield poses significant risks for customers faced with potential trademark infringement issues. And it is a problem that most globally-focused companies will likely face. Stay tuned for future posts.  (By Mary Beth Ayvazian) General 2010-01-06T16:56:46+00:00 http://www.exemplarcompanies.com/site/film_financing_-_tips/ http://www.exemplarcompanies.com/site/film_financing_-_tips/#When:16:50:02Z Today is the start of a new year and the beginning of my new Blog Spot where I shall attempt to enlighten, thrill, excite, engage and educate as many of you as possible to the trials and tribulations of the world of film and more specifically from time to time, Film Financing. I’m sure many of you reading this will know everything and more about what I will write about over the coming months but there will no doubt be an unfortunate few that will know little to nothing.  My tips are more of an education than anything, but will also endeavor to provide some pros and cons to the various financing vehicles that every film producer should know. Today is the start of a new year and the beginning of my new Blog Spot where I shall attempt to enlighten, thrill, excite, engage and educate as many of you as possible to the trials and tribulations of the world of film and more specifically from time to time, Film Financing. I’m sure many of you reading this will know everything and more about what I will write about over the coming months but there will no doubt be an unfortunate few that will know little to nothing.  My tips are more of an education than anything, but will also endeavor to provide some pros and cons to the various financing vehicles that every film producer should know. I intend to cover, pre-sales, debt financing, soft money, deferrals and credits for dollars, brand integration, the beast that is the ‘finder’, development, distribution and many other topics.  I will also blog about what makes a good producer or a good film, the practicalities of how to reach actors and making sure that your investors and of course yourselves, don’t get screwed, and I will attempt to make the blogs entertaining by employing my dry British sensibilities and wit. The lesson or Tip/s for today are: Never put your own money into your films unless it triggers a larger investment that essentially closes the deal. Always treat making films as a business because it is a business.  You might think you have the greatest script since sliced bread or that your actors are re-known TV stars from your favorite TV show, but does anyone else. Only make your film for a price that you can reasonably justify that you can sell it for and ask the experts what that price is.  You wouldn’t build a house for $1m if you were told it’s only going to be worth $500k when its finished. Stay tuned for the next episode of FILM… FINANCING….. TIPS (by Mark Andrews)   Film Industry by the Numers General 2009-12-24T16:50:02+00:00 http://www.exemplarcompanies.com/site/bloggers_beware_free-speech_means_freedom_but_it_does_not_mean_free/ http://www.exemplarcompanies.com/site/bloggers_beware_free-speech_means_freedom_but_it_does_not_mean_free/#When:06:54:08Z Blogs provide companies accessible forums because they facilitate the free-flow of information and communications concerning topics ranging from company news to significant industry developments. However, earlier this year, the SEC revisited its legal regulations pertaining to “Internet-based speech” and applied existing standards to company-hosted blogs and shareholder forums, which means that corporate bloggers should proceed with caution! Blogs provide companies accessible forums because they facilitate the free-flow of information and communications concerning topics ranging from company news to significant industry developments. However, earlier this year, the SEC revisited its legal regulations pertaining to “Internet-based speech” and applied existing standards to company-hosted blogs and shareholder forums, which means that corporate bloggers should proceed with caution! Before posting your blog, some sample regulations bloggers should keep in mind include: • “All communications made by or on behalf of a company are subject to the antifraud provisions of the federal securities laws whether those statements are made on a company-sponsored Web site or on a third party Web site.” • “Companies need to have in place controls and procedures to monitor statements made by or on behalf of the company in blogs, electronic shareholder forums, and other interactive Internet-based communications.” • When including a third-party hyperlink within your posts, you imply to your readers that “the information thereon is interesting and useful.” To avoid confusion and potential legal troubles, include your reasoning for referencing the link, and be clear in alerting your reader that the subsequent information is not directly associated with you or your company.  Any transgressions could result in imposed penalties from the SEC. So, fellow blogger, take the necessary steps to ensure your blog posts are in compliance with these regulations. We should all remember that “While speech is free, the cost of litigation surely is not!” If you have questions about whether your corporate or business-related blog may put you at risk, please contact our for advice. By Ben Doherty General 2009-12-20T06:54:08+00:00 http://www.exemplarcompanies.com/site/about_the_website_part_ii_animals_as_allegory/ http://www.exemplarcompanies.com/site/about_the_website_part_ii_animals_as_allegory/#When:04:19:14Z Animals have long served as an inspiration for human artists who, for reasons of symbolism, employ animals in metaphorical fashion within their work. During 2007, the Athens Institute for Contemporary Art of Athens, GA, USA, hosted an exhibition entitled Animal Instincts: Allegory and Anthropomorphism, which “explore[d] individual and societal tendencies to imbue other species with purely human physical and psychological characteristics.” The exhibition featured works reflecting a number of subject matters, including War & Animal Allegory; Dystopic vs. Utopian Visions; Human Identity Through Animal Character; Animal Equality, etc. Animals as Allegory - Generally: Animals have long served as an inspiration for human artists who, for reasons of symbolism, employ animals in metaphorical fashion within their work. During 2007, the Athens Institute for Contemporary Art of Athens, GA, USA, hosted an exhibition entitled Animal Instincts: Allegory and Anthropomorphism, which “explore[d] individual and societal tendencies to imbue other species with purely human physical and psychological characteristics.” The exhibition featured works reflecting a number of subject matters, including War & Animal Allegory; Dystopic vs. Utopian Visions; Human Identity Through Animal Character; Animal Equality, etc. Animals also have been used within larger narratives, such as fairy tales and folk stories. Tales of frog princes, hapless pigs, and the Big Bad Wolf are just but a few such examples. . “There is a lineage of artists throughout art history who have utilised animals and the natural world to indirectly relay allegorical stories, often with ethical undertones. Moral tales were particularly prevalent in the Dutch and Spanish still life tradition, where animals, fruits and flora were depicted to convey various notions including abundance, greed, wisdom and mortality. Further, animals appeared in Renaissance painting as metaphors for many subjects, including innocence, longevity and wealth.” [ii] For example, “The famous animal tale of the six blind men and the elephant, in which each of the blind men described the elephant differently depending on the part of the creature he touched, has been interpreted in ways nearly as varied as the blind men’s descriptions. In each of these interpretations, the story demonstrates the use of animal metaphors to express important issues.” [iii] Another example is writer C.S. Lewis’ personification of animals in The Narnia Chronicles - Narnia is a land of talking animals, wherein Lewis makes animals a central part of his narrative, a biblical allegory.[iv] Indeed, Lewis’ reliance on animals was grounded on an age-old practice dating as far back as the Old Testament itself. “Even in the Old Testament certain animals, such as the bull, lamb, dove carried a special significance. As sacrificial animals these were more than the four footed beasts and birds that roamed the earth. Already they possessed a symbolic quality which pointed to some higher significance—a significance which would be drawn out and elaborated by centuries of biblical exegetes.” [v] Egypt and the cultures of the Near East relied heavily upon the animal fable genre. Several fables were transmitted to Europe through Aesop, the Greek writer of the sixth century BCE. “Their influence reached as far as the seventeenth-century French fables of Jean de La Fontaine and the eighteenth-century Russian fables of Ivan Andreyevich Krylov; and, in a wider sense, even to Animal Farm (1946) by George Orwell. That animal fables are intrinsically allegorical is shown by their aim, not at the life of animals, but at the human predicament.” [vi] “The Kalila wa Dimna, animal tales known in the West through Les Fables of La Fontaine, can be traced to 4th-century India…Written for the edification and amusement of princes and magistrates, they were second in popularity only to the Koran. The witty dialogue of the animal characters, led by two scheming jackals called Kalila and Dimna, reveal a Machiavellian code of behavior and mirror a real world of intrigue, diplomacy, and statecraft.” [vii] George Orwell’s Animal Farm is perhaps “the most widely read allegory in the middle school and high school classrooms. Orwell’s 1945 novella is an allegorical indictment of tyranny which utilizes the historical events and players of the Russian Revolution and the subsequent rise of Stalin as a cautionary tale.” [viii] “Animal Farm is the story of an animal revolution. The animal residents of Manor Farm, spurred on by the dream of the pig, Old Major, decide they will change their “miserable, laborious, and short” lives. They overthrow Mr. Jones, their master, and take over the management of the farm. Rather than living under the heel of their human master, the animals of Manor Farm decide that they will take control of the products of their labor, working for the good of the farm and other animals, rather than for the good of humans.” [ix] Animals as Allegory - on the Exemplar Website: According to The Continuum Encyclopedia of Animal Symbolism in Art, the Bear and the Hippopotamus depicted on the Exemplar Companies website possess special symbolic value.         The Bear: “‘All in all the bear symbolizes elemental forces, susceptible of evolutionary progress, but also liable to awesome regressions’ [Chevalier and Gheerbrant]. The bear is one of several symbols of the GREAT GODDESS, specifically in connection with her aspect as birth-giver…Another aspect of the goddess embodied in bears is her healing powers. Bears appear to have been a focus of human awe from the earliest times, and indeed may have been the first animals to be worshipped – in the form of Neanderthal CAVE altars with carefully placed skulls of giant cave bears (Hill in Cavendish II:210).” [x] “…The bear’s life cycle, with its pattern of energetic activity, hibernation, and springtime re-emergence, further explains the hold that bears have on the human imagination. The bears’ reappearance connoted a symbolic rebirth paralleling the cycle of nature (Hill in Cavendish II:208).”  [xi](p.34) “…In Siberia and Alaska, the bear is, according to Chevalier and Gheerbrant, in the same category as the moon, because it vanishes with winter and returns in spring – these people linked the bear with cycles of nature, especially with vegetation. Arctic and Subarctic hunters may regard the bear as a supernatural being which is a MASTER OF ANIMALS…Among the Eskimo the bear was a favored helping spirit of the SHAMAN and often appears in the form of ivory amulets.” [xii] “…The Apache regard the bear as being so powerful that it is never killed, and is literally ‘untouchable’ in life and death. The bear’s power to heal plays a major role in the myths of the Pueblo and the Plains peoples – the shaman/medicine man of these groups often enjoined the bear as a helping spirit (Hill in Cavendish II:209).” [xiii] “…The Norse god Odin can appear in bear form (Biedermann 33). Among the ancient Celts, the bear was the symbol of warriors and temporal power…” [xiv] “…In China, the bear is a male symbol of strength and bravery, heralding the birth of boys, in harmony with home, and mountain – the bear forms a COMPLEMENTARY DUALITY with the serpent and water, bearish yang, in opposition to watery yin. The image of the panda, embroidered in robes, was a symbol of ranking court officials…In Buddhism the bear is the VEHICLE of protective deities, particularly in Tibet where it also functions as a protective weather god.”[xv]         The Hippopotamus: “The hippopotamus symbolizes both fertility and destruction. This Greek word means ‘river horse’…Pregnant Egyptian women depended on the HYBRID, but largely hippopotamus goddess Taweret for protection and Amenti, the ‘bringer-forth of the waters’ was one of several Egyptian aspects of the GREAT GODDESS. The male hippo, by contrast, because it frequently did damage to crops, was regarded as a manifestation of inimical forces in the world and was linked to the evil [god] Seth (Chevalier and Gheerbrant 507). Egyptian pharaohs and nobles are frequently shown hunting hippopotami, as they must have done in reality…In the Old Testament book of Job (40:15-24) the hippopotamus is sometimes equated with the Behemoth, the embodiment of brute strength – prophesied to return in the last days – that can be mastered by God, but which man cannot tame (Biedermann 174; Chevalier and Gheerbrant 507; Cooper 83). [xvi] ____________________________________________________________________________ See Animal Instincts: Allegory and Anthropomorphism, ATHICA, Athens Institute for Contemporary Art (Sept. 22 – Nov. 11, 2007), Absolute Arts.com at: http://www.absolutearts.com/artsnews/2007/10/11/34708.html . [ii] See Animals as Allegory – Teacher’s Resource, QUT Art Museum, Brisbane Australia (Feb. 2-April 9, 2006), at: http://www.artmuseum.qut.edu.au/downloads/AnimalsEducationKit.pdf . [iii] See Hope B. Werness, The Continuum Encyclopedia of Animal Symbolism in Art, The Continuum International Publishing Group, Inc. (© 2003), at: http://books.google.com/books?id=fr2rANLrPmoC&pg=PA202&lpg=PA202&dq=hippopotamus+symbolism+in+mexico&source=bl&ots=ekJ8_yyxIL&sig=p8JvOHEo5t1r1RBW409olRnyqzA&hl=en&ei=kRAnS7vjFZDclAexoZWVDQ&sa=X&oi=book_result&ct=result&resnum=7&ved=0CBoQ6AEwBg#v=onepage&q=hippopotamus&f=false . [iv]  See Matt Brennan, The Lion, the Witch and the Allegory: An Analysis of Selected Narnia Chronicles, at: http://cslewis.drzeus.net/papers/lionwitchallegory.html . [v] See Animals, English at Wheaton College, at: http://www.wheaton.edu/english/resources/medieval/animals.htm . [vi] See Gwyn J. Griffiths, Allegory, The Oxford Encyclopedia of Ancient Egypt (Jan. 1, 2008) at: http://www.mywire.com/a/Oxford-Encyclopedia-Ancient-Egypt/Allegory/9472009 . [vii] See Jill Sanchia Cowen, Kalila wa Dimna: An Animal Allegory of the Mongol Court, The Istanbul University Album, Oxford University Press (© 1989), Editorial Reviews at: http://www.amazon.com/Kalila-Dimna-Allegory-Istanbul-University/dp/0195056817/ref=cm_cmu_pg_t . [viii] See Animal Farm: Allegory and the Art of Persuasion, EDsitement, The National Endowment for the Humanities, at: http://edsitement.neh.gov/view_lesson_plan.asp?id=613 . [ix] Id. [x] See Animal Instincts: Allegory and Anthropomorphism, supra at p. 33. [xi] Id., at p. 34. [xii] Id., at p. 35. [xiii] Id. [xiv] Id. [xv] Id., at p. 36. [xvi] Id., at pp. 215-216. General 2009-12-17T04:19:14+00:00 http://www.exemplarcompanies.com/site/about_the_new_exemplar_website/ http://www.exemplarcompanies.com/site/about_the_new_exemplar_website/#When:05:55:40Z About the Exemplar Website: Exemplar has taken great care in the building of its new website to bring interesting and meaningful content to our customers.  We also have tried to make your visit to our website an enjoyable experience where you can learn more about what we stand for and the many ways in which we can help our customers to overcome challenges and grow their businesses.  In this blog, we wanted to share with you some of the thought that went into the illustrations you see on our site.  Like any good site, it is very much a living and evolving canvas for sharing knowledge, demonstrating capabilities, and keeping you apprised of new innovations that bring our customers exactly what they have been asking for in a professional services firm.  The content and illustrations that you will find on this site will, no doubt, reflect our development and evolution as an Exemplary services firm(s). We are pleased to share our inspirations with you and welcome your feedback, as we continue to expand and refine our new and evolving creation, hand-in-hand.  About the Exemplar Website: Exemplar has taken great care in the building of its new website to bring interesting and meaningful content to our customers.  We also have tried to make your visit to our website an enjoyable experience where you can learn more about what we stand for and the many ways in which we can help our customers to overcome challenges and grow their businesses.  In this blog, we wanted to share with you some of the thought that went into the illustrations you see on our site.  Like any good site, it is very much a living and evolving canvas for sharing knowledge, demonstrating capabilities, and keeping you apprised of new innovations that bring our customers exactly what they have been asking for in a professional services firm.  The content and illustrations that you will find on this site will, no doubt, reflect our development and evolution as an Exemplary services firm(s). We are pleased to share our inspirations with you and welcome your feedback, as we continue to expand and refine our new and evolving creation, hand-in-hand.  About Exemplar:  Exemplar was formed with the express intention of consistently delivering, in a holistic manner, the most innovative and highly valued professional services available to mid-tier companies in the marketplace.  Since Exemplar is a firm that is committed to remaining ahead of the curve and providing unmatched value, it was critical to choose a style of presentation that captured the imagination and dedication to excellence of our creative, forward-thinking professionals, our uncompromising values system, and our unique brand “personality”. About Our Relevant and Radical History (“The best way to predict the future is to invent it.” ~Alan Kay, computer scientist): Exemplar’s history as the first corporate law firm in the nation to abandon hourly billing in favor of a fixed, value-based pricing model is an interesting one. Although today the practice is considered innovative, this wasn’t the case back in the 1950’s when billable hours started to become an accepted practice.  At that time, billing by the hour was considered an “alternative billing model” and the distinguished professionals of the time balked at the practice, stating that the practice “put your lawyer on the same level with your plumber.”  By comparison, Exemplar’s innovative business model is truly RADICAL to the core (relating to, or characteristic of the basic or inherent constitution of a person or thing; fundamental)!  While the word RADICAL has come to have a colloquial meaning as being on the cutting edge, especially with respect to professional services,  its true definition is one of returning to the fundamental “root” of things.  Indeed,  in fields other than professional services, such innovations are actually well accepted and, in some cases, deemed fundamentals of good business practice.  It is notable, in this regard, that the practice of billing by the hour, warmly embraced by America’s law firms, is a divergence from fundamentally sound economic theory. For example, Karl Marx’s Labor Theory of Value (on which billable hour is based) was refuted as a valid economic theory long before its adoption by the professions.  Apart from being inefficient, the billable hour is also symptomatic of other ailments that have recently befallen corporate America: the erosion of corporate organizational values systems; the failure of internal accountability mechanisms (transparency, checks and balances); and the disregard for corporate stakeholders-at-large.  Consequently, insofar as Exemplar’s RADICAL business model was designed, in part, to address these systemic weaknesses, it can also be said to be a bit retro; i.e., it harkens a return to sound practices that have been proven successful over time. About the Website Design: Exemplar’s creative team has crafted a RADICAL (progressive as well as fundamental) website design that caters to today’s users: It not only has the capacity to communicate massive amounts of information, but also the means to enable users to quickly navigate to the most “relevant” information.  The Exemplar website was designed to place a premium on efficiency and simplicity – it does not divert users’ attention with moving parts, music, and hundreds of colors, and generic stock photography.  The Exemplar website, rather, was modeled,  generally, after the Newspaper, a proven system of organizing and presenting information that has worked well since the 1400’s. And, it was specifically, inspired by the genius of the Wall Street Journal, which creates an easily navigable front page while communicating up to 20 or more topics.  About the Website Illustrations: The Exemplar website hand-illustrations are intended to communicate in a more personal manner how Exemplar’s innovations can benefit our customers.  We also chose hand-illustrations because they demonstrate our firm’s values, namely, our commitment to customer quality and integrity, as well as, our firm’s high-touch and service-oriented mission. Hand-illustrations also exemplify our firm’s focus on the arts and entertainment, which have been identified as a primary Exemplar initiative.  The Exemplar website illustrations are stylistically inspired by the journalistic genre known as Political Satire.  For example, the New Yorker and Economist magazines convey a certain “smartness” wherein artistic creations are imbued with a distinct, but engaging look and feel that animates the brand.  Unlike a publication, Exemplar is a professional services firm with a collective ‘personality’ with which our customers interact every day. Therefore,  we believed that the Exemplar website illustrations needed not only to be smart (e.g., allegorical), but also fun and interesting to look at. In other words, they needed to convey a personality that is as accessible as engaging.  What’s up with the Penguin: As far as personalities go, Exemplar’s is most personified by the Penguin.  The Penguin is an affable, hardy, intuitive, free-flowing and playful character that reflects and fits well with our brand image.  In the future, Exemplar website illustrations will feature only one Penguin, the Exemplar Penguin.  Over time, the Exemplar Penguin will acquire a life force and personality that exemplifies the ever-evolving, active Exemplar brand. About the Animals: Exemplar website illustrations rely heavily on the use of animals. The use of animals as allegory is well established in world history.  Animals are particularly useful in clearly conveying a point or benefit that could be confused on misinterpreted with the use of people.  Anthropomorphism of animals also helps people to identify with the personality traits associated with humans without the “baggage” associated with the choice of physical characteristics of a person, and the confusion about what that choice is intended to add or communicate to the viewer.  Exemplar animal illustrations are used to tell a story of the benefits associated with our firm’s innovations. We Invite You to Enjoy the Exemplary Evolution: We look forward to working with you and demonstrating our abilities. Please visit Exemplar’s website regularly for fresh and relevant information and to learn more about how we continue to deliver successful results for our customers. General 2009-12-01T05:55:40+00:00 http://www.exemplarcompanies.com/site/the_universal_principle_of_value_whats_missing_in_a_profession_thats_mis/ http://www.exemplarcompanies.com/site/the_universal_principle_of_value_whats_missing_in_a_profession_thats_mis/#When:20:17:34Z I have been putting a lot of thought lately into what it is about the profession of law that has gone astray and left so many professionals either miserable or driving them out altogether. The perceived “roots” of these problems have long been the subject of scholarly articles and current discussion: Lack of work-life balance, unchallenging work, systemic under-delegation, no diversity (and no more than lip service to solving the problem], competitive individualistic work environments, eat-what you kill systems, and, of course, the dreaded billable our system with it’s evil sister [quotas]. I have become passionate about Exemplar and the fixed-price model based on the subjective theory of value because executing on the business model Is DOMINO ONE to all of the other “symptoms” of a broken system. That’s right—the business model fixes and addresses each and every one of the factors that represent the deterioration of an honorable profession.  (READ MORE) I have been putting a lot of thought lately into what it is about the profession of law that has gone astray and left so many professionals either miserable or driving them out altogether. The perceived “roots” of these problems have long been the subject of scholarly articles and current discussion: Lack of work-life balance, unchallenging work, systemic under-delegation, no diversity (and no more than lip service to solving the problem], competitive individualistic work environments, eat-what you kill systems, and, of course, the dreaded billable our system with it’s evil sister [quotas]. I have become passionate about Exemplar and the fixed-price model based on the subjective theory of value because executing on the business model Is DOMINO ONE to all of the other “symptoms” of a broken system. That’s right—the business model fixes and addresses each and every one of the factors that represent the deterioration of an honorable profession. Many people have trouble understanding how to execute on a model that is based on the subjective theory of value so they depend on a far inferior model that is based on COST or TIME. The Time-based model has been long refuted by business experts and bear no relation to what the customer wants and values and yet the profession that is trained to ask the most questions asks none with regard to why we operate this way. Henry Ford put it quite well when he wrote: ” We do not bother about the costs. The price forces the costs down. The more usual way is to take the costs and then determine the price; and although that method may be scientific in the narrow sense, it is not scientific in the broad sense, because what earthly use is it to know the cost if it tells you that you cannot manufacture at a price at which the article can be sold?” What has become even more clear than the impact of Exemplar’s pricing model is that every once in awhile an industry or profession varies from the Universal Principle of Value and bad things begin to happen. The business model of billing by the hour started in the late 1950’s and since then the way they manage, measure, and compensate knowledge workers has changed. What our industry has seen in the past 5O years is the wholesale deterioration in quality of life, work-life balance, challenge, meaningful client relationships, and loyalty to people in general, but particularly the next generation. Our industry has missed the point. . . . it has gone too far astray from the Universal Principle of Value. We are an industry that is NOTHING without its people and yet it is leaving its own behind where financial gain can be attained. It is no wonder at all that so many professionals choose to vote with their feet and simply walk away. It is also no wonder that professionals like myself have taken a stand for what they believe in. for bringing our profession back into alignment with clients and with the Universal Principle of Value. . . . Because Exemplar is about so much more than a pricing model. . . it is about changing people’s lives. There is nothing more rewarding and humbling all the same than to lead our profession back to the center, the core, and one day reach the summit of Excellence at the crossroads of Great People and Profitability. Author James Davis Carter put it well when he wrote: ”. . Discovery of the power to aim at ideal ends freely chosen by his own free will and intelligence is the supreme achievement of man, and in that, more than any other in any other single fact, lies hope of the future” General 2009-11-29T20:17:34+00:00 http://www.exemplarcompanies.com/site/billing_by_the_hour_causes_cancer_direct_links_discovered_by_jurist_doctor_/ http://www.exemplarcompanies.com/site/billing_by_the_hour_causes_cancer_direct_links_discovered_by_jurist_doctor_/#When:08:03:47Z In Recent News, it was discovered that billing by the hour causes cancer in professionals who adopt these billing practices. The problem is said to start with cancerous “time-billing” cells in the brains of consulting and law firm partners. Since these cells infect the brain, causing irrational behavior in the partners thereby causing them to lose all common sense (to healthy hosts). In Recent News, it was discovered that billing by the hour causes cancer in professionals who adopt these billing practices. The problem is said to start with cancerous “time-billing” cells in the brains of consulting and law firm partners. Since these cells infect the brain, causing irrational behavior in the partners thereby causing them to lose all common sense (to healthy hosts). For instance: Common Sense: - The more effective I can be for the client, the more value this will have to the client. Thinking of Cancer-Infected Partners: - The more I drag this out and the more hours I can bill, the more this must be worth to the client. Yahoo! Let’s burn the midnight oil! The problem discovered by J. Doctor Marston was that organizationally, the cancer is infectious from the top down. Therefore, once the brain cancer infects the host partners, it quickly spreads to the other partners and junior staff in the firm. Interestingly, the cancer operates differently in those infected at lower organizational levels. Dr. Marston’s research discovered that the brains of associates are highly resistant to the cancer of the partnership initially. Unlike the partners, who actually believe they are operating under a economically sound billing model (although it is well documented that Karl Marx’s Labor Theory of Value has long been refuted!), associates and laterals do not immediately experience a chemical change in the brain causing them to believe that clients actually want to buy TIME! Studies show that the cancer first infects the associates in other body parts effecting motor skills and the nervous system. For example: —Big firm associates who become infected experience a “treadmill effect,” constantly worrying about not meeting their billable hour quotas. They think about time they spend with their loved ones as an opportunity cost . . . feeling like they “could be billing for that time instead.” They hate feeling that way, but cannot help it.—The cancer in associates also causes lethargy in partners and associates alike. Consequently, outside counsel and clients are left having to manage their consultants and attorneys by giving them deadlines to avoid over-consulting, over-lawyering, drag-outs, unnecessary 50-page memos, briefs, etc. After years of billing by the hour, infected consultants, attorneys, and lateral partners eventually get “billable brain cancer” and begin to believe that the only way to run a firm is bill by the hour. It is an unfortunate fate for those who experience it. Fortunately, some associates manage to escape the hamster wheel in time to get cured (most by leaving the profession and some by escaping to in-house legal departments where they watch from afar as their former colleagues become further entrenched by the nasty billable hour cancer at large firms! Fortunately, Exemplar (http://www.exemplarcompanies.com/) has created cancer-free professional services and law firms where the partners operate under economically sound principles, think of working effectively and adding value (not acting as fungible commodities billing time increments). Increments are Excrements! Adding value is what drives our attorneys to leverage their unique skills, rise to new heights, and please clients time and time again. A healthy lifestyle option has arrived in the legal profession. Exemplar Companies has found the cure to billable hour cancer! General 2009-11-12T08:03:47+00:00