Tag: Attorney in Boston

June 9, 2014   Posted by: Margarita Smirnova

BUSINESSES DEALING WITH ON LINE DEAL SITES!

At one point, sooner or later, you, as a business owner or business principal will consider offering your services on a Groupon like or an on line deal sites to promote your business and show potential customers your service.   Forbes’ article Are Daily Deal Sites Like Groupon Still Worth It? points out the wariness of the consumer.  In the article, a writer didn’t use her coupon.  She stated that customers became disillusioned by the deals and burnt from experiences.  She ended her article with a list of great advice for the buyers.  The list is great to connect with customers and figure how to make your business last.  The list below will take it a little further and list issues that businesses may deal with when working with companies that providing on line deals.  Keep in mind that the list is not exhaustive and not all companies are the same.

1.     Deals are contractual agreements.  When dealing with a corporation that offers an on line deal you will be provided with an already prepared contractual agreement that contains multiple clauses.  One of the most commonly used clauses is expiration date.  Each contract varies.  In 2012, Groupon, Inc. paid $ 8.5 million and settled a class-action lawsuit, which alleged illegal expiration dates when customers didn’t use their vouchers.  See, In re Groupon Inc. Marketing and Sales Practices Litigation, 11-MD-2238, U.S. District Court, Southern District of California. The result affected businesses that now must accept monies customers paid even after the deal, sans the discount.

When facing with on line deal like contract, this is the time to review every clause very carefully.  It is important to understand the company’s motive, which is to sell.  This means what is said is not always what is in writing.  One Boston magazine offered an on line deal to a business where the salesperson verbally offered a deal-type scenario that consisted the company would provide the deal on their website and keep 100% of proceeds from the deal while the business would provide a service to the customers who would buy the deal in exchange for the publication.  When they sent the contract to the business, it was shocking to see that no deal-type scenario was included anywhere in the contract.  In fact, the business would be solely responsible for the publication.

2.     Cancel the contract clause.  Deal-type companies retain the right to cancel the contract with the business at any time without warning or explanation.  That means whatever efforts you made to prepare your business to deal will go to waste.  They also can change a day and a time of the without being liable to you.  The contract can limit the business’s right to cancel which renders the clause illegal when one sided.

3.     Another big one is condition of approval clause.  If the business isn’t careful and signs this clause, the company can get the right to strip you of your right to condition for approval, which I think, is atrocious.  You want to see your final version of advertisement before it goes out in print or on line.

4.     Watch out for your own property rights.  One company wanted to retain rights to own and sell to third parties of businesses’ pictures or images and trademark perpetually.  This means that not only they can use your images that you’ve spent time, money and energy to obtain and belong to you, but also to sell them to whoever they please forever.

5.     Customer dissatisfaction.  All on line deal like companies contain limitation clauses in their contracts.   They also will make sure to be indemnified from further liability and the responsibility will fall almost entirely on the business.  It is important to be aware what type of liability the business will absorb.

Groupon like companies retained attorneys to draft contracts for them.  There is nothing wrong if you get help from one.

Written by Margarita Smirnova, Esq.

If you have a specific question relating to your business or any other legal questions, please contact Margarita

Call: (617)398-7482
E-mail: margarita.smirnova@gmail.com
This post is for informational and educational use only and does not create attorney-client relationship.
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December 5, 2013   Posted by: Margarita Smirnova

MY NEW YORK BAR EXAM STORY

Around this time of the year, a certain number of people disappears from social circles for about two to three months.  I’ve been there when I sat for the 2008 New York Bar exam.  Studying and sitting for the bar exam is a challenging and stressful process.  It can be sad or it can be satiric.  I choose the later, and in honor of the upcoming bar examination study period, I decided to share my experience and this is my story.

I studied, and oh boy, did I study.  Needless to say, I was exhausted from 3 years of law school.  The week before my law school graduation I started the Bar Bri course.  Usually, the process of studying for the bar begins way before the graduation date.

In February, I took PMBR multiple choice course.  I lost my precious 3 weekends of catching up on sleep and homework in addition to writing papers and job applications.  After playing the catch up, the mid-term time approached.  Time was of an essence and graduation approached.  Here I am, walking the graduation walk with my 2008 classmate and my friend decided to propose to his girlfriend that morning.  Hey, wasn’t it supposed to be my day?  Still, I was very happy for them!

Studying was a blur of 15 hour days following with little sleep.  Since my first language is Russian, I studied extra hard.  The ginormous Vermont ants seemed to really like me being still for hours while I took my timed questions and essays (my close friends know how much I hate insects near me but that’s another story).  Then, my landlord of 3 years seemed to lose all the love for me since the moment I notified that I was staying in my apartment during the summer (yes, I paid for it if you ask).  The “new” and early a.m. construction and lawnmower making noises while parked under my window became part of the norm.  The icing of the cake was my landlord threatened to throw my personal belongings out of the apartment as soon as I leave and trying to keep my security deposit in the end.  (The magistrate agreed with me and ordered to give it but to me later but that’s another story).  On a positive note, the highlights of my bar exam study were two horse-back riding lessons and a movie trip with my bar class.

The day before the bar exam I checked in the hotel.  Why, just why, did one of the bar exam takers needed to sit in the lobby and study?  I guess he didn’t get the memo not to study the day before the bar exam.

On the day of the bar exam, I arrived and was greeted with a few thousands of super-stressed humans like me.  I got to my assigned seat 20 minutes before the show was going to begin.  I was just about to get happy because few of my classmates and study mates were sitting near me.  I guess at that point I didn’t need much.  And as I settled, the drama began.

A woman sitting to my right asked me to switch seats because she was left handed and ‘needed’ my seat.  She conveniently forgot to consider that the exam was administered on laptops.  In fact, the entire room we were in was assigned for laptops.  I told her I did not want to be moved.  I offered her to move in the back of the room where nobody sat and mentioned that she should have taken care of it prior the day of the examination.  Surprisingly, she wasn’t too happy with my response.  You would think it would be the end of story.

Five minutes before the exam starts I left the stress room to take a breather.  Upon my return and to my shock, the proctor was switching the numbers of our seats.  My sweet neighbor had already put her sweater on my chair and had my stuff moved on her seat.  I sternly told to the proctor that I did not agree with the switch and she quickly moved the numbers back.  Way to go to start your legal profession with the lie dear bar exam taker.  Later I found out, proctors were not even allowed to make switches.

The whole day of the examination, my bar exam neighbor would shake the table on purpose, puff, sight and move a lot.  On the second day of the examination, she apparently made a mistake filling up bubbles in her answer sheet someplace in the beginning and filled out the rest in wrong order.  She had to erase everything around 45 minutes before the end of the test.  She violently shook the table for 15 minutes forcing me to lift and tilt my exam question sheet and answer sheet.  This is the moment I knew that if there was an earthquake, nothing would prevent me from passing the New York Bar exam!

 

Written by Margarita Smirnova, Esq.

If you have a specific question relating to your business or any other legal questions, please contact Margarita

Call: (617)398-7482

E-mail: margarita.smirnova@gmail.com

no comments posted in: Business Law   |   Litigation
November 8, 2013   Posted by: Margarita Smirnova

RELATIONSHIP BETWEEN BUSINESSES AND LOCAL GOVERNMENTS

On November 22, 2011, Massachusetts allowed casinos through the Expanded Gaming Act.  This month is a 2 year anniversary since the casino business became legal in this state.  So, what happened since Governor Deval Patrick signed the law.

205 CMR regulates gaming through Massachusetts Gaming Commission.  Under the 194 §1(7), Massachusetts Gaming Commission was established that consists of chair and four commissioners and it is tasked to overview fair and transparent gaming experience.  Chapter 194 §1(13) requires businesses to “have received a certified and binding vote on a ballot question at an election in the host community in favor of such license; provided, however that a request for an election shall take place after the signing of an agreement between the host community and the applicant; provided further, that upon receipt of a request for an election, the governing body of the municipality shall call for the election to be held not less than 60 days but not more than 90 days from the date that the request was received; provided further, that the signed agreement between the host community and the applicant shall be made public with a concise summary, approved by the city solicitor or town counsel…”

This means that Massachusetts requires local voters to agree before casino applicants can even obtain a state license to conduct any type of gaming activities.  While Boston residents voted against casinos entering their city, Revere residents voted for the casinos and dog racing trucks to enter their city.  Leominster residents were a bit more conservative and allowed only slot machines.   With casinos entering the area, the employment and financial improvement will affect the economic growth of the city.  At the same time, the local government will have to raise security to balance out the influx of the visiting people and to protect from potential criminal activity.  Similarly, Jamaica Plain is legendary opposed to work with chain companies.  For example franchises such as Arthur Murray, Fred Astair, and Apple store will have a tough time opening their doors in Jamaica Plain.  At the same time, a small independent dance studio or a computer store would have no problem doing their business.  What this essentially means is that people decide what business they want where they live.

Its a known fact that business owners must comply with all Federal, State, city/town to ensure their business is legal and runs smoothly.  States and cities/towns are of local nature and still hold enormous power over how they want their businesses to run.  Not all is lost.  Besides compliance, there is another way to make sure the business process in the community is doable.  Business owners can and should become an integral part of their local government.  They can work with and participate in the community to ensure they reflect the area and assist growth in the community which in turn improve their chances of staying afloat and profiting.

Written by Margarita Smirnova, Esq.

If you have a specific question relating to your business or any other legal questions, please contact Margarita

Call: (617)398-7482

E-mail: margarita.smirnova@gmail.com

 

 

 

 

 

 

 

 

 

 

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July 29, 2012   Posted by: Margarita Smirnova

Use disclaimers if you want to prevent your e-mail communications from turning into a legally binding contract.

Internet has already changed our lives and how we do business.  A definition of a deal is also evolving!  For better or worse, Massachusetts E-Sign law is changing the way we do transactions today.  A Massachusetts case Feldberg v. Coxall (May 22, 2012) says that an email with an unsigned offer may create a binding agreement.  In its decision, the court relied on the Uniform Electronic Transactions Act, Massachusetts General Laws, chapter 110G. The main factors are the context and the surrounding circumstances of between the parties’ communication.

The case involved a real estate transaction consisting of an undeveloped property located in Sudbury, Massachusetts.  Parties negotiated and the prospective buyer e-mailed an offer to the seller with definitive price tag in the amount of $475,000.00.  Later, the prospective seller refused to sell the property.  The issue was whether the emails reflected an offer and acceptance sufficient to show a present intent to be bound to the purchase and sale.  The buyer sued.  The buyer claimed that emails reflected the binding contractual agreement because it satisfied the Statute of Fraud requirements.  See Feldberg v. Coxall.  Under the Statute of Fraud, agreements involving land transaction must be signed.  See http://www.malegislature.gov/Laws/GeneralLaws for more information.

Essentially, the best way to prevent an unwanted contract from forming is to include a disclaimer in your e-mail correspondence stating that the e-mail exchange will not constitute a binding agreement unless signed in writing or stated otherwise.

Written by Margarita Smirnova, Esq.

If you have a specific question relating to your business, please contact
Margarita

Call: (617)875-8663

E-mail: margarita.smirnova@gmail.com

May 22, 2012   Posted by: Margarita Smirnova

Monitoring of Sensitive Information, Warrants and Legal Response!

In a recent US v. Jones, (January 2012) decision the US Supreme Court held that “the Government’s attachment of the GPS device to the vehicle, and its use of that device to monitor the vehicle’s movements, constitutes a search under the Fourth Amendment.”  In Jones, the police obtained the warrant but didn’t quite properly execute it.  While the Jones case was mostly the 4th Amendment of the US Constitution and its protections and warrant issues, the key issue in my mind was the surveillance and how far it can go without the warrant.  Warrant less surveillance has been a hot topic forever.  Law responds depending on political movement of what is considered the bad guy at that certain period of time.

Now, US Supreme Court is going to hear a new case.  This time the question involves a post Sept. 11 government’s aggressive use of electronic surveillance.  The scrutiny is over the validity of an amendment to the Foreign Intelligence Surveillance Act (FISA) which is about disclosure of the “secret program to wiretap the international communications of people suspected of terrorist ties without obtaining court warrants,” according to the New York times.  In other words its about the wiretapping law of 2008.

While I clearly understand the “security” reasons behind this particular legislation, it is always the current state of affairs in the country that makes up the decision of the judges.  I find it fascinating how each new legislation especially of this huge caliber brings out the gray area that eventually shapes our legal history in the long run.

See below, Supreme Court Agrees to Hear Case on Surveillance, by Adam Liptak, May 21, 2012 
 http://www.nytimes.com/2012/05/22/us/justices-agree-to-hear-surveillance-challenge.html?_r=1&hp

Written by Margarita Smirnova, Esq.

If you have a specific question relating to your business, please contact
Margarita

Call: (617)398-7482

E-mail: margarita.smirnova@gmail.com

 

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