By Associate Attorney Danielle Nodar
Marketing your business has extended beyond websites and social media, with many businesses choosing to reach their customers directly via text messages. While this form of marketing is a great way to communicate promotions, offers, or new products to your customers, businesses must adhere to text message privacy laws or risk incurring hefty penalties. For example, a violation of the Telephone Consumer Protection Act (TCPA) can result in a fine of $500 to $1,500 per violation, which can add up quickly if multiple messages are being sent to multiple consumers. Electronic communications, including phone calls, e-mails, and text messages, are regulated in the United States under two federal privacy laws: The TCPA and the CAN-SPAM Act. The TCPA is the primary telemarketing law in the US and prohibits calls and text messages to cell phones unless the consumer has provided express written consent. Express written consent must be related to receiving promotional text messages--not just being contacted by the company. For example, having a customer provide their phone number to set up an account or as part of a transaction does not constitute consent to receiving future promotional messages. To comply with TCPA’s consent requirement, businesses should provide a consumer with a clear, conspicuous disclosure of the kinds of text messages they will receive before sending them promotional messages, the approximate number of messages they will receive in a certain time frame, and how to get more information about the subscription program and opt-out of future messages. Many times, this constitutes an introductory text message that provides information about the promotional program, message and data rates, and a prompt that allows a consumer to enter “STOP” to unsubscribe or “HELP” to receive further information about the texting program, including links to the company’s privacy policy or terms and conditions. Another law businesses must comply with when engaging in text message marketing is the CAN-SPAM Act. This is the primary text messaging spam prevention law in the US. Just like TCPA, a business needs a customer’s consent before sending commercial text messages. The commercial text messages must clearly disclose that it is an advertisement and provide an easy, clear way to opt-out of receiving future messages. When a consumer opts-out of a text message campaign, the business must honor the request within 10 days. CAN-SPAM Act does not apply to existing relationships or transactions, such as order or delivery confirmation texts. However, if the main content of a message is commercial, the CAN-SPAM Act will apply, even the message also includes other transactional information. In order to comply with these two laws, businesses must ensure that they have a compliant procedure for obtaining written consent from a consumer prior to them receiving promotional text messages. Some options include keyword texting, where a customer will text a keyword from their phone to join, an online form or website pop up that allows a visitor to opt into the program, or a paper form. Businesses should also keep records of a customer’s consent, including when they consented and if they opted out. If you are thinking of using text message marketing for your business, please call Jesson & Rains to learn more about how to properly start a texting campaign and best practices for protecting your business!
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By Attorney Kelly Jesson
We hope everyone has had a wonderful holiday so far. People frequently make new year’s resolutions to stop bad habits or improve their lifestyle, but what about a new year’s resolution for your business? Make 2022 the year that you start running your business and stop the business from running you. One key to making this switch is delegating tasks to others, and Jesson & Rains is happy to take a few things off your plate. Last year, we started offering annual plans that include some of the administrative annual tasks with which businesses (i.e. YOU) have to comply, such as filing annual reports and keeping meeting minutes, and offer cost-effective peace of mind with discounted legal services, registered agent services, and quarterly or unlimited calls. There’s never a reason not to consult your lawyer if we make it easy for you. Not running your business properly can result in a loss of asset protection, which is one of the whole points of formalizing your business. We wrote about this in a past blog HERE, and this LINKS to our annual plan packages. Give us a call if you would like more information! Start 2022 off right! October is National Women’s Small Business Month. Jesson & Rains is proud to represent and work for numerous women-owned businesses.
Charlotte is an exciting place for women entrepreneurs. As we previously reported, in 2018, it was named the “#1 City in America for Female-Owned Business Growth.” Women-owned business growth continued across the country in 2019. Unfortunately, due to the pandemic, Barbara Weltman reports that the number of women-owned businesses fell by 25% from February to April 2020. However, there are plenty of indications that women entrepreneurship is back on the rise. Participation in women’s networking groups and trade associations is key. Attorneys Kelly Jesson and Danielle Nodar are members of the following groups: National Association of Women Business Owners (NAWBO), Women Lawyers of Charlotte, National Association of Women in Construction (NAWIC), and Women in Networking. Please reach out to Kelly or Danielle if you’d like to drop in on a meeting one day! By Attorney Edward Jesson
Last December, Congress passed the Copyright Alternative in Small-Claims Enforcement Act of 2020—better referred to as the CASE Act. The CASE Act instructed the U.S. Copyright Office to create the Copyright Claims Board (“CCB”) as an efficient and user-friendly option to resolve copyright disputes where the amount disputed is less than $30,000.00. Generally speaking, before the CASE Act, a copyright holder would have had to file a lawsuit in federal district court in order to enforce his or her copyright. The problem with this is that federal litigation is both expensive and time consuming. Many professional content creators and small businesses simply could not afford to enforce their rights under copyright law. Moreover, the people who were infringing on those rights knew that in all likelihood nothing would be done as a result of their copyright infringement. The CCB will be permitted to hear three different types of claims: (1) Creators bringing infringement claims against people infringing on their copyrights; (2) Users can request that the CCB issue a statement ruling that their use of something does not infringe on the copyright owner’s rights; and (3) Users who receive a Digital Millennium Copyright Act (“DCMA”) takedown notice (similar to a cease and desist) are able to challenge that notice if they feel it is inaccurate. It is important to note that, if the copyright holder prefers, they can still bring the claim in federal district court (assuming all other jurisdictional factors are satisfied) or move forwards with mediation and arbitration. Also, the Respondent can “opt-out” of the CCB proceeding, requiring the copyright holder to move forward with a federal lawsuit. However, there are several incentives for those named as respondents in CCB proceedings to opt-in to the proceeding. For example, on top of the cost of litigation in federal court, a successful plaintiff in a federal proceeding can be awarded up to $150,000.00 per work infringed whereas, in the CCB setting, that amount is limited to $15,000.00 per work infringed. The CASE Act also caps the damages that can be awarded by the CCB at $30,000.00 whereas, in federal court, those damages are unlimited. Once the CCB is fully established (as of writing, it is currently still in the rule making stage), it will provide small businesses and individual creators a cost and time effective way of enforcing their copyrights under federal law. If you believe that your copyright has been infringed or that you have been wrongly accused of infringing on a copyright, please call the attorneys at Jesson & Rains for a consultation on the matter today. By Attorney Kelly Jesson
We previously wrote about the importance of keeping good business records in order to avoid personal liability for business debts. However, did you know that certain business records can act as estate planning tools? Your interest in your business, whether an LLC interest or corporate stock, is personal property that you can leave to a family member when you pass away. Unfortunately, it will go through probate unless you transfer it to a trust or enter into a transfer-upon-death (TOD) or joint with rights of survivorship agreement with your heir. The court collects a fee based on the amount of personal property that goes through probate, so if your business is worth some money, you want to avoid this. What if you have a business partner? Perhaps you don’t want to do business with his/her spouse or child if your partner passes away? That’s where an operating agreement or a shareholder’s agreement comes in handy—in either of these agreements, the owners can agree that if one of them passes away, the other will buy out their interest. This is helpful for the survivor, who will remain in control of the company, and this is helpful for the deceased owner’s family, who will get a sum of money. These agreements (also called buy-sell agreements) are oftentimes funded with life insurance, to ensure that there is liquid cash available to pay the family. In either of these agreements, the owners can promise the other not to transfer their business interest to third parties while they’re alive, which is also helpful for control purposes. The parties can agree to buy the other out when other “triggering events” happen, such as a partner’s bankruptcy or divorce. You don’t want one of these events to cause the forced sale of all or part of the business. It is important to put a plan in place to prepare for the unexpected (that frequently happen). If you or someone you know needs assistance putting an operating agreement or shareholder agreement in place, or incorporating their business into their estate plan, please give Jesson & Rains a call! We offer flat fee packages for these formation documents. We also offer flat fee annual plans that include preparing annual meeting notices and minutes, filing annual reports with the Secretary of State’s office, and other legal services. More information can be found here. By Meg Abney, Jesson & Rains PLLC Intern
If you are a professional, like a therapist, CPA, or attorney, you know exactly how your business should be run. But what happens when incapacity or death intervenes? Who will pick up where you left off? A “Professional Will” can help provide guidance and critical instruction for what comes next. While not a true legal document, like a Last Will and Testament, a “Professional Will” is essentially a roadmap explaining how to terminate or continue operations at your business or practice. Unlike your Last Will and Testament, which concerns distribution of assets, a Professional Will names a trusted individual or emergency response team to handle business affairs like:
Depending on your profession, you may be obligated to provide some form of advance planning for your business or practice. In North Carolina, psychologists, LPCs, NCCs, and LMFTs are required to make advance plans for the transfer of clients and to protect the confidentiality of records and data. A Professional Will satisfies this ethical responsibility. Even if not specifically required in your industry, all professional business owners can benefit from a Professional Will. Professionals often have an obligation to protect the interests of their clients, and a Professional Will can help avoid a breach of duty. Individuals whose clients rely on continued care or service should strongly consider a Professional Will to help prevent disruptions. Ideally, you should create your Professional Will alongside your personal will since your Last Will and Testament supersedes all other testamentary documents. Therefore, it is best to work with an experienced attorney to ensure that there are no discrepancies between these two documents. Please call Jesson & Rains PLLC if you have questions about whether your business could benefit from a Professional Will or want to learn more about protecting your business’s future. |
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