Shopping Carts in Hawaii! What's the Law?

 

*Disclaimer:  This post discusses general legal issues, but does not constitute legal advice in any respect.  No reader should act or refrain from acting based on information contained herein without seeking the advice of counsel in the relevant jurisdiction.  Ryan K. Hew, Attorney At Law, LLLC expressly disclaims all liability in respect to any actions taken or not taken based on the contents of this post.

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Today's Post is Not About Sledgehammer Time: It's Only Focused on the Shopping Cart Law

Hey all, I decided to jump on the bandwagon (may be the shopping cart?) and talk about shopping carts.  However, I am not going to get into whether Rep. Brower's actions exposes him to civil or criminal liabilities or if they were right or wrong.  I think Civil Beat, attorney Marcus Landsberg, and the news outlet and social media has already beaten that cart into disrepair (yeah, I am going to keep trying to hammer away with the lame jokes and puns).

Anyway, what I would like to do is take a look at this matter from a business establishment perspective (those that put out the carts) and what the legislature has put forth as a law on point (looking at what is on the books.  It turns out that we have enacted a law specifically for shopping carts.  HRS § 633-16 discusses the unauthorized removal of shopping carts.  Further, as it is in Chapter 633, it puts this matter in small claims court.  

Breaking Down the Law

So looking at the law, as currently stated, it makes it a violation for a person to remove a shopping cart (including baskets and other devices) from the premises of business establishment (that owns the cart), if they are unauthorized.  The premises include the parking lot as well as the sidewalks adjacent to the business establishment's premises.

The business establishment is the person who has the ability to bring a claim under this law if there is damage to the business or property.  The business may sue for damages and win an award equal to the replacement value of the cart (and keep in mind the average cost of a cart ranges from $100 - 250), basket, or device plus the cost of the suit.  The establishment can also sue to enjoin the unauthorized act.

So in order for a business to win in small claims court (under this law) the must nail down these elements: 

  1. they are the lawful owner of the cart, which has been identified;
  2. they gave notice, which means posting a conspicuous sign where the carts are stored that says the carts are not to be removed;
  3. that the cart was removed from the business location without proper authority; and
  4. the person accused of violating this law is in possession or had control of the cart.

Practicalities of the Law

In terms of policymaking it is understandable why the legislature gave such a legal action for business owners of these carts (as they are expensive).  However, in terms of reality is if these carts are being taken by people who are unable to pay the damages or the business cannot track them down its effectiveness as a law should be looked into.  In addition, how many shopping cart owners utilize this law for these purposes? All I know at this point though is that the bang of the gavel in your favor is a better sound than a squeaky cart on uneven pavement!

A Final Word

Although this post was focused on shopping carts, business owners for any type of legal action should always consider the cost of pursuing claims in court versus that of implementing practical solutions (where possible), or possibly a combination of legal and practical action, such as drafting contracts, policies, procedures, and other preventative measures.  Anyway, that's it for this post.  Mahalo!

Ryan K. Hew, Attorney at Law, Moving into New Office Space!

As many of my clients and friends know I have been cofficing and using a home office, but due to the volume and the needs of my clients I decided to take the plunge and move into an office space.  My new office is located at:

535 Ward Avenue, Suite 206 | Honolulu, HI 96814

As an attorney that strives for creating accountability and transparency, and sharing thoughts and information via social media let me give you some of the key factors in my decision:

  • feasibility, as it is affordable office rent and it is shared with an estate planning attorney, therefore I need not increase my fees at this time;
  • location, as many know I strive to help the small businesses and startups, especially the ones located in Kaka'ako and now I am nearby in walking distance for many of them;
  • privacy, many of my clients, while they appreciate my efforts to meet them at their offices (which I will continue to do) they sometimes want to meet at mine, and now I am happy to say they can, not to mention there is free parking;
  • location, not only is the office near Kaka'ako it is a short drive from my friends and professional networks located in downtown Honolulu, Honolulu Hale, and the State Capitol;
  • delivery of new content and services, by moving out of my home office my intent is to create a professional space where I can develop podcasts, invite small parties over for meetings and presentations, host online seminars so that it is convenient for busy founders, owner-operators, and my fellow members of various organizations I am a part of, as well as have open office hours for new walk-ins; and
  • location, being on Ward Avenue puts me at the convenience of the Ward Centers, Ala Moana Shopping Center, the major Hawaii commercial banks, and for the wonderful shopping and eateries that exist in the area.

So I ask of you now readers, friends, former, current, and potentially new clients to watch out for my tweetup invite to my new office!

Mahalo.

-RKH

FAQ: Should My Startup Issue Stock Certificates?

Sorry, no Draw the Law this week (or next week), as I am working on a something important.  I will announce what it is tomorrow. As for today, this is a follow-up on a FAQ that a lot of founders and startup corporations ask me.  Should they issue stock certificates?

Is It Required by Law?

As I said last week, no. In Hawaii, a corporation, through its board of directors (under the authority of the articles of incorporation or bylaws) may issue shares without certificates.  In general, most, if not all jurisdictions, have done away with the requirement of a piece of paper signifying ownership in a corporation.

Even social media giant, Facebook, scrapped its plans earlier this year to issue paper stock certificate to its shareholders.  More and more companies are turning to electronic registration as a way to keep track of shares.

What about the Startups?

It's true large, publicly traded corporations are moving away from the traditions of paper, but does that mean you should.  There are some attorneys who feel you should as it signifies ownership and allows a small group of founders to have a check on each other given the fluidic nature of startups.  Others embrace the digital and just say keep good electronic records and documentation.  Not to mention paper certificates are actually costly to print, which is an added cost your young corporation may not need.

For startups, the founding owners should discuss whether or not they want to issue paper certificates or not.  It really is a personal preference, as some people enjoy having the tangible proof of ownership and nostalgia of the paper.  In fact, Scripophily.com buys an sells original paper stocks for people interested in collecting.  Still others prefer the cheaper method, and just keep an electronic spreadsheet to keep track and just send updates.

If My Startup Decides to Issue Stock Certificates What Does it Require?

Hawaii Revised Statute §414-86 states the following required items to be on a stock certificate if you choose to issue them:

 (b)  At a minimum each share certificate must state on its face:

(1)  The name of the issuing corporation and that it is organized under the law of this State;

(2)  The name of the person to whom issued; and

(3)  The number and class of shares and the designation of the series, if any, the certificate represents.

(c)  If the issuing corporation is authorized to issue different classes of shares or different series within a class, the designations, relative rights, preferences, and limitations applicable to each class and the variations in rights, preferences, and limitations determined for each series (and the authority of the board of directors to determine variations for future series) must be summarized on the front or back of each certificate.  Alternatively, each certificate may state conspicuously on its front or back that the corporation will furnish the shareholder this information on request in writing and without charge.

(d)  Each share certificate:

(1)  Must be signed (either manually or in facsimile) by two officers designated in the bylaws or by the board of directors; and

(2)  May bear the corporate seal or its facsimile.

Last Word

Personally, on a practical level, I do not think you need them, but that isn't a legal opinion.  It just has to do with startup expenses and printing out specialized paper may not be necessary and would only drive up your costs at the beginning when you need to focus on your business model.  However, in some cases it may be warranted, but everyone's situation is different.  Therefore, consider speaking to an attorney to provide advice and their thoughts given your situation on this matter and all that other paperwork that you need!

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*Disclaimer:  This post discusses general legal issues, but does not constitute legal advice in any respect.  No reader should act or refrain from acting based on information contained herein without seeking the advice of counsel in the relevant jurisdiction.  Ryan K. Hew, Attorney At Law, LLLC expressly disclaims all liability in respect to any actions taken or not taken based on the contents of this post.

FAQ: Are Stock Certificates Necessary (under law)?

My Short Response: No. ^Shortest post on my blog. More to come later!

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*Disclaimer:  This post discusses general legal issues, but does not constitute legal advice in any respect.  No reader should act or refrain from acting based on information contained herein without seeking the advice of counsel in the relevant jurisdiction.  Ryan K. Hew, Attorney At Law, LLLC expressly disclaims all liability in respect to any actions taken or not taken based on the contents of this post.

NOTICE: RELAUNCHING OF WEBSITE - WWW.HAWAIIESQUIRE.COM

UPDATE: WEBSITE RELAUNCHED (9/4/2012)

So to all my clients, readers, and friends, thanks for bearing with me on the delay! I wanted to get this new site to you as soon as possible, but have been swamped with work! Very grateful to have new clients who are understanding and work with me on helping their business objectives become realities.  So a lot of new content and features on this site, as opposed to my old site.  Please look around and get a feel for the site, especially if you are a small business owner or entrepreneur I would like you to have this become a resource and tool for you as you consider the legal aspects that touch upon your trade or industry.

As always, I am appreciative of meeting new clients and remember the initial consultation is always free up to an hour, and I am happy to meet with you in-person, talk to you over the phone, or type up a thoughtful email.

Please enjoy my new website and its content.

Mahalo.

-RKH

P.S. Some functions and features are disabled at this point and will be rolled out later. Also pardon some of the graphical errors, as I am also my own graphic designer for a lot of the pictures you see on the site. Bear with me as I fix the kinks.

--END OF UPDATE--

-- PRIOR POST BEGINS--

(8/9/12)

Dear clients, readers, and friends I am letting you know that starting next week I will begin migrating content from www.hawaiiesquire.wordpress.com to www.hawaiiesquire.com. This represents a disruption in my posting schedule and you will not see new content from me on both sites (old and new) for 2 weeks.

While I realize that may seem simple, I assure you that my friends in the tech community have long advised that I do this and my awesome IT and web management crew are working hard to do it as soon as possible. Expect to see a better user experience, which means more resources and content to be useful for small business and startup owners.

In the meantime, please continue following me on Facebook, Twitter, and Linkedin, as I will be doing frequent updates through those social media avenues - I will be doing another speaking event soon, so please follow, as it will be a good one.

Finally, I would like to say that wordpress.com has been a great home to my website and blog for over a year. I highly recommend those of you starting a business to do a blog and a website if you are not savvy enough, and start here, as they make it easy and accessible. It has definitely made my practice better and gives me a unique voice in the crowded field of legal services.

So I will see you all soon again and please favorite, bookmark, subscribe, or just write a note to yourself to in the future go to www.hawaiiesquire.com.

Mahalo!

-RKH

--END OF POST--

IP Licensing Lesson: Don't Copy and Paste, Ask and Talk

So people who know me, know that I love video games. So I was excited when I saw Disney's movie trailer for Wreck-it Ralph, an animated story about a villain who gets tired of being a villain.  In the trailer, one of the signature scenes is the main character attends an AA-style meeting with fellow video games. The amazing thing about this is the sheer amount of characters from different video game companies that appear in this film. I know many of you reading this may be like, why is that a big deal? It is a big deal because generally the process to secure licensing rights to use copyrighted material or a trademark is expensive and can be extremely time-consuming. However, this article by IGN.com, a site that focuses on mostly video games and other entertainment, interviewed the creators of Wreck-it Ralph. Be aware that characters in video games, cartoons, comic books, etc . . . sometimes have been both registered trademarked and copyrighted, as a strategy to create multiple layers of intellectual property (IP) protection.

I think there is a valuable lesson for business owners who do advertising, graphic design and content creation, and social media marketing in this quote:

But as the film started taking shape, rights issues eventually became a factor. "We went out and met with people in person, which I think is the key," said Spencer. "When people came in for E3, we would actually meet with all of the companies and talk about the movie. From the very beginning we said, 'We want to be authentic to your character. What we would like to do is put in an approval process where you look at our animation and you say that we're being true to the character.'" As the creators noted, most companies were all for it.

Now, later in the article the creators do note there were some arduous processes, like double-checking with Nintendo if it's characters were being represented accurately, but the lesson is clear ASK and TALK to the IP owner about what you want to do. This is the art of the sale and business deal, and I think authenticity goes a long way.

I have noticed recently many people are flocking to Slideshare to put up their presentations. I wonder, as I look through these well put together presentations, whether or not the people got the IP owner's permission to use their images, logos, etc . . . . Did you talk to them? I realize it is easier to COPY and PASTE, but I will let you in on a little secret it is also easy to COPY and PASTE a CEASE and DESIST letter with a demand for damages.

Happy 4th of July, the Declaration of Independence is it legally binding?

Hello my fellow Americans that are reading this post (to my international friends, thank you for visiting on this momentous day for the United States of America).  Anyway, some legal scholars will always have differing opinions, but I do side with the group that says the Declaration of Independence is NOT a legal binding document.  It is NOT a contract.

Rather than wasting your day off with legal philosophy, just think of the act of the Declaration of Independence as a repudiation of a "contract" that is that the colonies had with the crown of England.  However, notice with normal contract law, that a court has the power to enforce or direct damages against the breaching party.

In our country's great struggle for freedom and independence we repudiated our connection to a despotic king's attempt to control our colonies.  The way to enforce this "contract" - through force of arms, i.e. the Revolutionary War.  However, as a legal document, the Supreme Court, does not find the Declaration of Independence as substantive law.

I think that this legal podcast explains the situation quite well. In short, our Constitution enshrines many of the sentiments of the Declaration of Independence, which is a binding legal document.  While, I am sure you probably want to discuss this more given the Supreme Court's rulings from the past week, take a breath and enjoy your day and declare some freedom from the stress of the work week!

Happy 4th of July!

Draw the Law Delayed

Hey everyone Draw the Law will be delayed slightly today.  It will discuss the use of nondisclosure agreements, as we continue our tour of commonly used agreements by startups or small businesses. In the mean time, check out my event next week (which will also be discussing NDAs). You can sign-up by clicking the link.

Brand and Content Protection: Insight on Copyright, Trademark, and Trade Secrets Law

All successful businesses nowadays need to produce their own content and manage a unique brand or they will be lost in the noise of the Internet.  With the certain interests pushing bills like SOPA and court cases pending regarding ownership of intellectual property it is best for business owners to understand the law of copyright, trademarks, and trade secrets.  Learn how the law does (or doesn’t) protect your work and ideas.

We will discuss creating your content and brand, what registering copyright and trademark does for you, and some strategies for managing and protecting, such as licensing, those important creative assets that make your business unique.  Lastly, we will end with an open discussion with where the law might be heading.

  • Date: May, 23rd (Wednesday) 
  • Time: 6:00 p.m. – 7:00 p.m.; 45 minute presentation with 15 minutes for Q&A
  • Place: The Greenhouse Innovation Hub, 685 Auahi Street
  • Price: $20.00 – materials and samples included

Check back later today for Draw the Law. Have a good morning!

Draw the Law Delayed for Law Week!

Hey everyone, I know you were all looking forward to talking about licensing agreements for this week's Draw the Law, a follow-up to my discussion on marketing or reseller agreements, but you are just going to have to wait one more week.  As an Oahu Director of Hawaii's Young Lawyers Division I am working on Law Week this week (as well as following the wrap-up of the local state Legislature).  So my sketches of the concept have to wait one more week.  Pardon the delay.

Law Week with KHON2 Action Line (April 30th - May 4th)

Instead please, if you live in Hawaii, take advantage of our Law Week program put on by many legal professionals here in the State.  Although you may have missed Monday's KHON2's Action Line on Consumer Protection, Bankruptcy, and Foreclosure law you can still call in for the following topics:

  1. Tuesday, Family Law (Divorce, Custody, and Child Support);
  2. Wednesday, Estate Planning and Elder Care Law
  3. Thursday, Employment Law and Wrongful Termination
  4. Friday, Property Law (Landlord/Tenant)

Please call the studio between the hours of 11:00 am - 1:00 pm (Hawaii time) at the following number: 808-591-0222.  For further information, click this link.

Free Legal Clinics (May 5th)

If you miss out on our legal phone lines we will be bringing volunteer paralegals and attorneys to a neighborhood near you this Saturday.  We have volunteer attorneys taking your questions and providing free legal information.  There are no solicitation fees and everything discussed is in confidence.

The main goal is help the public gain access to justice and highlight this year's theme of Law Week, No Courts, No Justice No Freedom.  We are bringing the professionals of the court to you, so you can be better informed of your legal rights. Please see below for a list of locations, all clinics will be open from 10:00 am - 2:00 p.m. this Saturday, May 5th.

Mahalo and see you around!

The clinic locations are as follows:

Oahu Legal Clinic Locations:

  • Don Quijote – Kaheka
  • Don Quijote – Pearl City
  • Don Quijote – Waipahu
  • Haleiwa Historical Gym (Haleiwa)
  • Sack N Save (Nanakuli)
  • Waianae Coast Comprehensive Health Center (Waianae)
  • Windward Mall Shopping Center (Windward)
  • Filipino Festival (Kapiolani Park)
  • Kapolei Marketplace (Kapolei)

Neighbor Island Locations:

  • • Maui Mall (Maui)
  • • Puainako Town Ctr. (Hilo)

Know Your Legalese: Promissory Estoppel

Yesterday, I talked about detrimental reliance, which is known to lawyers as promissory estoppel. The reason why lawyers call detrimental reliance by that weird-looking term, promissory estoppel, has to do with the way the lawsuit works operationally in court.  In a typical breach of contract, the nonbreaching party sues for damages under the contract that the breaching party fulfilled to do its obligation.  The nonbreaching party has to prove there was a contract and that to have a contract good consideration needed to be a part of it. In the case of detrimental reliance there is no consideration.  It is just a promise that one party relied on.  Therefore, in a a standard breach of contract suit the nonbreaching party would lose the case.  However, this is where promissory estoppel steps in.  A party that has reasonably relied to their detriment can assert promissory estoppel as the basis of a cause of action for damages.  It operates by estopping the promisor from denying the existence of a contract due to lack of consideration.

Basically, in an employment type of situation it goes like this, "Hey, you cannot say there wasn't a contract. I moved across the ocean to work here because of what you promised."  Even though the speaker, gave no consideration to the prospective employer, he is saying that due to a promise he changed his position (he moved).

*That it is why, in my opinion, promissory estoppel is a contract-like situation because there is no consideration. We are using a legal device (promissory estoppel/detrimental reliance) to enforce a promise where no consideration has been given between the parties, only a promise.

*Disclaimer:  This post discusses general legal issues, but does not constitute legal advice in any respect.  No reader should act or refrain from acting based on information contained herein without seeking the advice of counsel in the relevant jurisdiction.  Ryan K. Hew, Attorney At Law, LLLC expressly disclaims all liability in respect to any actions taken or not taken based on the contents of this post.

Sorry Draw the Law Delayed to Wednesday

Hey everyone, thank you for your continued support and reading Draw the Law. Unfortunately, I have been extremely busy and will not be able to get to today's Draw the Law on Conditions in Contract law.  It will be up tomorrow, Wednesday, March 14, 2012. In the meantime, please check out this other great websites for entrepreneurs, small business owners, social media marketers, and lawyers:

Pardon the delay, and check back Wednesday!

-RKH

BTW Legalese: Parties that end in "or" or "ee"

By the way, you may have noticed, contract law there are a lot of terms that describe the parties involved that end with “or” or “ee”. For example, offeror and offeree from this week’s Draw the Law.  If you see this in a long legal document you can immediately recognize the relationship of the parties involved. The ”or” person is the originating person of the action.  It starts with them, and then ends with the “ee” person.  Like’s take the example of offerror and offeree.  The offeror is the one making the offer, whereas the offeree is receiving the offer.

This works for other relationships like in an assignment, where there is the assignor, the one assigning property or interest rights in something, and the assignee, the one receiving the property or interest rights.  Some relationships, do not necessarily follow this categorization, as you will see below (i.e. trustor and trustee).

Consider the following pairs:

  • Offeror/offeree - offeror makes an offer to the offeree
  • Payor/payee - the payor makes payment to the payee (i.e. the payee is the one who endorses a received check)
  • Lessor/lessee - the lessor leases property (or the right to use property) to the lessee
  • Licensor/licensee - the licensor grants a license of the right to use something (IP) to the licensee
  • Assignor/assignee - the assignor transfers rights or property to the assignee (via an assignment)
  • Grantor/grantee - the grantor grants title in real property to the grantee
  • donor/donee - the donor donates (gifts something) to the donee)
  • *Settlor (trustor)/trustee - the settlor creates the trust, which the trustee holds and manages for the benefit of the trust's beneficiaries

Social Media and the Law Talk at The Greenhouse Innovation Hub

Hey everyone be sure to sign up for a seat at my talk next week on Social Media and the Law. If you missed How to Create a Social Media Policy with Social Media Club Hawaii last week or you made it and still have questions this is a good talk for you:

The details are as follows:

  • What: Social Media and the Law Talk
  • Description: a discussion of the laws that affect social media use, from defamation to trademark infringement, find out some of the legal landmines that may alter your perception of using social media.  This talk is particularly geared for small business owners, start-ups, and social media marketers.
  • Date: Wednesday, March 7th, 2012
  • Where: The Greenhouse Innovation Hub in Kaka'ako - 685 Auahi Street
  • Time: 6:00 - 7:00 p.m.
  • Price: $20.00, includes all materials

For more information and ticket purchase please click here.

See you then!

-RKH

Social Media and the Law Events

Hey everyone,

Lots to talk about and tell you about today on this great Presidents' Day so let's get to it:

Hawaii Innovation Alliance, Peter Kay, and ThinkTech Radio

This is a little late notice, but I will be joining Peter Kay (of Your Computer Minute fame) on ThinkTech Radio this afternoon from 4-5 p.m. We will be discussing the emergence of the Hawaii Innovation Alliance, an association of tech industry folks interested in becoming more involved with the legislative process with regard to tech laws.

ThinkTech is on from 4-5 p.m. (M-F) on station 760 KGU AM.

Social Media Club Hawaii: Creating a Social Media Policy Event

If you remember my prior posts on Social Media Policy and want to know more join me, and fellow panelists experts at Social Media Club Hawaii's event tomorrow night discussing how to Create a Social Media Policy.  It is free and being hosted at the Amuse Wine Bar in the Honolulu Design Center. It starts at 6pm and runs to 730pm. For more information on the panelists and the event click here.

Social Media and the Law at The Greenhouse Innovation Hub

Finally, if you miss out on tomorrow night, I will be having a more in-depth discussion of the legal pitfalls that small business owners and startups should worry about when it comes to social media at The Greenhouse Innovation Hub on March 7th. There are pre-sale tickets for $20.00 and the purchase price includes materials and handouts for that evening. For more information click here.

Hope you can check one of these things out. See you IRL or in cyberspace!

-RKH

Social Media and the Law, as well as other Fun Legal Info

Well, it's amazing isn't it? The month of January of 2012 is almost done and so much has already happened. Here are some interesting social media and the law news that I found, as well as some other fun pieces to carry you over for the day until tomorrow's Draw the Law.

Google and Privacy Concerns (this well continue to be an issue for 2012 for all Social Media)

Have you noticed that Goolge is making some major pushes lately?  Well come March 1 the search engine plans on doing a turnabout and begin combining information it collects about the user from various sites/services into a single profile. Definitely a privacy issue brewing, especially when the privacy officer has to issue statements. Click: Google to merge user data across its services - CNN.com You can also read the lengthy notification, which you keep bypassing when you log onto your Google+ page.

GPS = 4th Amendment "Search" as Determined by SCOTUS

For all of you interested in criminal law, like Marcus Landsberg criminal lawyer extraordinaire, notice that the Supreme Court- GPS Tracking Is Illegal Without Warrant. Basically, SCOTUS feels that the use of a GPS Tracking device is a "search" for the purposes of the 4th Amendment, thus cops must get a warrant.

Mutant Toys or Mutant Dolls? Yes, it Matters

This was a great listen if you love comic books and would like to theorize that certain superheroes are not human. Basically, the point of this podcast: Mutant Rights - Radiolab, was showing the importance of the word "doll" versus "toy" - you may not think it means much, but if you are an IP attorney and have an import business getting a cheaper rate for your action figures is a must and it all boils down to if a mutant is a human or not.

Department of Homeland Security Following Facebook Posts

Earlier this month DHS released a document stating it is monitoring social media and news sites. They cited federal law that they have to "provide situational awareness" to federal, state, local and tribal governments. You can read more about this here: DHS watching social media, news sites | Greeley Gazette.

NLRB Finds Certain Arbitration Clauses Violate Labor Laws

The National Labor Relations Board (NLRB) has determined that mandatory arbitration agreements that prevent employees from joining together to pursue employment-related legal claims in any forum, whether in arbitration or in court violate federal labor laws. Check that announcement here: Board finds that certain mandatory arbitration agreements violate federal labor law.

Local Startup and Social Media Infromation

For you startup lovers, don't forget tomorrow night will be Startup Hawaii kickoff. For more information, check it out here: Startup America Comes to Hawaii | Aloha StartUps. It will be at Bar 35 downtown. Definitely come on down if you started or are going to start a business!

Also check back at Alohastartups.com as I will be writing some future posts talking about Hawaii's new legal non-profit aimed at helping entrepreneurs and startups, Business Law Corp. (businesslawcorps.org). I hope to get some interviews with the founders soon!

Finally, clear sometime in February as I will be getting down with Social Media and the Law as I will be trying to schedule a talk at The Greenhouse Innovation Hub and will be a panelists at Social Media Club Hawaii's Creating a social media policy for business – what, how and when? event at Amuse Wine Bar on Feb. 21st. Hope to see you there!

Interesting Updates: Succession Planning, Discussing SOPA, and Podcasting

Well, hopefully you got a chance to read this morning's Draw the Law. This post is just highlighting some of the more interesting pieces of information that I would like to share with you.

Alohastartups: Succesion Planning and Crowdfunding Posts

Once again, Alohastartups was nice enough to put up my post on Succession Planning. This part 1 of a two part series. Check it out here. If you remember I conducted a co-talk with my friend and 2011 Leadership Institute fellow Scott C. Suzuki, a successful estate planner and elder care lawyer here in Honolulu about the benefits of thinking about your business should you die, become incapacitated, or would like to leave.

If you also recall, I did a piece on crowdfunding, which I found a couple of newer posts that you may find interesting. First of all, Entrepreneur.com has an opinion piece on "Why Crowdfunding is Bad for Business" - do you agree/disagree?  Anyway, whatever your opinion on the matter it appears that the Crowdfunding bill is stuck in the Senate. In fact, it isn't just stuck, it multiplied, as there are now three bills in the Senate. Want to know more check out good in-depth analysis by following Fizzlaw.com's link.

The Greenhouse: Innovation Hub Talks SOPA and Helps Me with Podcasts

Speaking of federal legislation, the Stop Online Piracy Act (SOPA) (as well as it's Senate counterpart PROTECT IP Act (PIPA)) continues to make headlines, as Wikipedia now joins the ranks of the growing number of sites that have vowed to blackout in protest of the bill.  Anyway, The Greenhouse: Innovation Hub is definitely living up to its creed of being a "learning lab" as they have set-up a discussion on SOPA and PIPA tonight, starting at 6pm. Click here for details.

In addition, The Greenhouse has worked with me to bring legal podcasts to you busy small business owners and people thinking of starting their own business. While, not as extensive as my talks, these podcasts should give you legal information to think about. Look for those to roll out soon and check back here for more information.

Who Owns a Twitter Account? Are Bloggers Journalists? What about CAN-SPAM?

Well, it’s 2012, but social media is still around and as you are trying to figure out how Timeline works on Facebook these are some of the interesting social media and the law stories that have cropped up:

Item #1: Who Owns a Twitter account?

A former employee is being sued by his South-Carolina based company. For? Taking their twitter account. Noah Kravitz of Oakland, CA is being sued by PhoneDog, a mobile phone news site company for multiple claims pertaining to his act of switching a Twitter account used by him for the company. This account had amassed a following of 17,000 followers, and PhoneDog is seeking damages of $2.50 per follower over eight months for a total of $340,000.

Based on the couple of articles I read on this story the only thing clear is that the terms agreement surrounding the account were unclear. As more and more companies continue to see social media as a valuable tool and resource and are actually having workers use them the reality is that we will see more lawsuits arise. I think the valuable lesson here is to have a social media policy, a worker agreement for social media marketers, and transfer procedures in cases of ending events, like termination. Without agreements in place you will be left at the mercy of a court.

You can read more about the situation in this New York Times article.

Item #2: Bloggers are NOT Journalists.

BLOGGERS PAY ATTENTION! You may think you dig up the facts, do solid research, and ask serious questions, but you may have to face the fact that courts may not see your as a journalist. Why is that important? In many states there are media shield laws. For example, Oregon has such a law.

Blogger Crystal Cox sought to defend herself from investment firm Obsidian Finance Group against a $10 million lawsuit for defamation. The blogger lost the case even though she argued that she was an “investigative blogger.” The judge disagreed because she was not employed by some official media entity, and therefore she could not take advantage of Oregon’s media shield law. She lost and the judgment against her was for $2.5 million.

I am not sure if this had any effect, but just from casual observation and what I am told from litigators and trial attorneys is that pro se (representing yourself) litigants often lose, and often lose badly.  So that may have been a factor. However, what is clear is that just blogging and acting like a journalist is not enough. For more info read this article from Seattle Weekly.

Item #3: Optimal Social Media Marketing Plans Can Help you Comply with CAN-SPAM Act

I ran across this post, “How to Make Optimum Use of Social Media Platforms for Marketing Your Business” while flipping through my Zite app on my IPad. If you are a small business like me and are trying to get a handle on this thing called social media you know it isn’t always easy making a connection via Twitter, Facebook, or even your blog. So I really appreciated the tips it gave in this short post.

However, when the biggest things that help me to help you (via this article) is that last section, “Automation doesn’t turn out to be Helpful Always” – why? Well, I did a Law Lunch with The Greenhouse Innovation Hub back in December where I talked about complying with the CAN-SPAM Act.  It seems that good marketing mirrors what CAN-SPAM Act is trying to curb namely:

Whenever you are searching for consumers, you need to strike real conversations and do not spam their inbox with auto-generated mails.  This can even turn a potential customer away from you.  It is necessary that you engage in regular conversations with qualified leads.

So do yourself a favor and stop relying on spam and do real conversations and follow-ups. In addition, make sure you are complying with the other requirements of CAN-SPAM Act (because it does not apply just to bulk e-mails) when sending that personal touch e-mail.

Have a great first work week of 2012! Lookout for Draw the Law next week. If you can't wait to see my doodles “Subscribe” today!

*Disclaimer:  This post discusses general legal issues, but does not constitute legal advice in any respect.  No reader should act or refrain from acting based on information contained herein without seeking the advice of counsel in the relevant jurisdiction.  Ryan K. Hew, Attorney At Law, LLLC expressly disclaims all liability in respect to any actions taken or not taken based on the contents of this post.

Last Post of 2011 and Looking Forward to 2012

Aloha Everyone!

Hope you are having an awesome Friday for this last aloha Friday of 2011. I just wanted to take the time, as I close out for the day to wish you all a happy and safe New Year’s Eve and for a start of a good New Year. In addition, I would like to thank all my friends, acquaintances, clients, readers, supporters, and yes even my Twitter followers for making 2011 a good start for me.

Storytelling in 2011 

I appreciate getting to know you all in the various settings that I have and welcome meeting new people and reconnecting with old friends whether it be in social media, IRL networking, or for coffee. Also thank you for allowing me to tell you all my story and journey of an attorney that loves the intersection of law, business, and politics in the realm of small business and startups.

Past Highlights 

I would like to highlight thanks to all of you for the positive feedback regarding this site and my services. In particular, I would like to continue to make this site a place a resource for small businesses and startups navigating transactional and compliance issues. Thus from this 2011 you will continue to see posts series like the following:

Because I care about the Hawaii community and am finding that I meet new people of this great state via social media I will continue to do special write-ups on:

New Features for 2012 

Although like all good growing businesses, their ideas change and grow I will be rolling out new features and ways to get information into struggling business owners’ hands. In fact, I’ll admit that being an attorney who just started going solo there were times I wish there were resources for me, and there were, but I will continue to try to deliver information to the people who want its and need it. I would like to thank various people and organizations that have given me feedback before I talk about my 2012 features.

First the Thank Yous

Thank you to my friends at Off-Menu Catering, all of you give so much support and thoughtful feed back to carry me through continuing to serve small business.

Thank you to The Greenhouse: Innovation Hub and in particular Doc Rock (@docrock) and John Garcia (@johngarcia) for creativity and inspiration, Jill (@swamwine) of SWAM, Danny (@wangchungs) of Wang Chung’s, and Shawn of Small Business Planning Hawaii (@SBPHawaii) for bouncing ideas off of to deliver services and information to small business owners. Melissa Chang (@Melissa808), Jennifer Lieu (@jlieu), and Capsun Poe (@capsun) always guiding lights for social media use.

Mahalo to the Young Lawyers Division, HSBA, and Leadership Institute for providing guidance to an attorney.  To fellow attorneys Wayne J. Chi and Scott C. Suzuki thank you for doing talks with me, some more planned in the future! To William (@alohastartups) of Alohastartups.com, much thanks as you are providing a great resource for startups in Hawaii and I am excited for the plan in 2012. However, I think I still owe you a post from 2011! Thanks to Rechung (@TheBoxJelly) of The Box Jelly for providing a space for legal talks and helping Hawaii coworkers.

Finally, thank you to Marcus Landsberg, a fellow Hawaii attorney that has helped out and set down this path of being a solo practitioner like me and showing that solo does not mean alone.

. . . Back to New Features of 2012

Ok, enough with the thank yous and let me get to the new features that you readers can look forward to from me in 2012 for this site in particular:

  • PODCASTS – that’s right Hawaii small business owners, no worries if you cannot make it down to one of my talks! I will be providing portions of them for you to watch in your store or at home.
  • One-sheets – simple pdfs talking about one particular issue for you to download, print, and share.
  • Newsletter – I am not sure what the frequency will be, but definitely watch your e-mail inboxes!
  • REVAMP of blog and website – I will be shifting gears and making sure that I deliver to you content in a more user-friendly style!

That’s it for this year! Have fun and be safe this New Year’s Eve and see you in 2012 (Year of the Dragon!).

-RKH

Event Reminders AND Draw the Law – Payment Issues, Part IV: Equal Credit Opportunity Act

Hey everyone before I get to today’s Draw the Law, let me remind anyone in the Honolulu area that I will be having two talks next week.

Events

First, on Monday (12/19), come join me at The Green House Innovation Hub, a center of creativity, innovation, and coworking down in Kaka’ako. I will be talking about CAN-SPAM Act, primarily for small business and marketing points of view. I covered a little bit about it back in this post for Draw the Law. This Law Lunch will be more in-depth and starts at 12PM. Click on the links to find out.

Then the following evening, Tuesday (12/20), starting at 7PM at The Box Jelly, I will be conducting a talk about Succession Planning with fellow attorney and Estate Planner Scott Suzuki. We will primarily focus on what happens to your business and personal assets of when you are gone, and the need to plan for the future. For more information, click here.

If you are a business owner, marketer, curious about advertising or tax planning come join us down in Kaka’ako the place to be for work and play!

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Draw the Law: Equal Credit Opportunity Act

So last week I talked about thinking about extending credit, and that you would need a policy and application. Moreover, when you advertised about this credit application process you would be regulated by the Truth in Lending Act (TILA). Today I turn how you must treat a consumer’s  credit application under the Equal Credit Opportunity Act (ECOA).

What is ECOA?

ECOA is a law that prohibits entities that extend credit from discriminating against certain aspects of the applicant.

What are those Factors?

If you are familiar with human resource management or remember the prior discussion on Employee Protection laws, then you can kind of guess what factors ECOA protects.

The factors you are prohibited from considering when deciding whether to extend credit or not are as follows:

  • Race
  • Color
  • National Origin
  • Sex
  • Marital Status
  • Age
  • Receipt of Public Aid
  • Exercise of the Person’s Legal Rights as a Credit-Seeker

Age? Does that mean I have to Give Credit to a 14-year old?

No, age as a factor is not a straight-forward analysis; first, the person has to have reached the age of majority (which is 18 in most states) to be protected by ECOA. With that being said, from the age of majority and up, you as the credit grantor cannot discriminate based on the applicant’s age, whether young or old. However, you may be favorable toward older people and may consider their future income stream. Furthermore, retirement complicates matters and generally you should consult an attorney if you are going to have a highly nuanced credit policy with regard to age.

Are there Factors I can Consider?

Yes, there are factors you can consider for granting credit, and they do get to the heart of the matter, which is why did you want extend credit in the first place? To make money, thus here are factors to look at:

  • Assets – what do they have as collateral? If they are asking for a huge extension and have very little to their name, where are you going to get your money if they default? Leads to the next factor -
  • Ability to Repay – what is the applicant’s current job or income source?  (usually, a mortgage lending practice and not consumer credit)
  • Credit History – how much money does the applicant owe? Do they pay bills on time? Have they ever declared bankruptcy?
  • Credit Foundation – do they own a home? How long have they been there? The ability to maintain a home and long residence there usually indicates sound money management by the applicant.

See you next week and look out for announcements for changes to this blog for 2012. If you enjoyed this post or any of my others please “Subscribe” to this blawg!

*Disclaimer:  This post discusses general legal issues, but does not constitute legal advice in any respect.  No reader should act or refrain from acting based on information contained herein without seeking the advice of counsel in the relevant jurisdiction.  Ryan K. Hew, Attorney At Law, LLLC expressly disclaims all liability in respect to any actions taken or not taken based on the contents of this post.