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Thursday, 02 September 2010 |
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August 2010
By: Stuart Sorkin
T he experience and chemistry of your acquisition advisors are equally important. The wrong advisors will not only wreck an acquisition, they can damage your company’s reputation. For example, a company’s three-year business plan called for development of a new product line and acquisition of a business to help roll it out to a broad customer base. The owner asked the company’s CPA and attorney to jointly direct the M&A effort. Neither had much M&A experience, but the owner trusted them because they had served his company for more than ten years. Together, the CPA and attorney interviewed and selected an investment banker to identify acquisition targets.
Thirteen candidate companies were found, but the screening process quickly eliminated eleven of them. The buyer’s president met with the CEOs of the two remaining companies and selected the target company based on strategic alignment—even though the price was high. An LOI was signed and the due diligence process began. In an effort to negotiate a lower price, the CPA was so aggressive in citing inadequacies in the seller’s financial records and performance that the seller’s CEO said, “It felt like I was working with Jack the Ripper.” The deal ended abruptly after a shouting match between the CPA and the seller’s CFO.
Your acquisition team must have experts with broad M&A expertise that you can trust to give you straight answers—but they also must have the right chemistry. The wrong advisers can kill your deal and hurt your company’s reputation. M&A deals frequently begin with good rapport between the buyer and the seller, but that rapport can dissipate quickly in the heat of negotiations. When patience is wearing thin and tempers flare, you want a team that will calm the waters and use their ingenuity to make an impossible deal possible.
You can’t be too careful in selecting your advisors; they will make or break your deal. While, as the owner, you ultimately make all of the decisions, surround yourself with acquisition all-stars including:
• An investment banker who will help find and evaluate candidates, and take the lead during most of the negotiations;
• An accountant/CPA who will lead financial due diligence, advise you on tax-advantaged ways to structure the deal, and work with your attorney and broker effectively;
• A finance expert who will help arrange financing for the deal;
• An attorney who will lead the legal and human resources parts of due diligence, work with your CPA to document a tax-advantaged deal, and prepare the purchase agreement and other documents; and
• An industry expert, usually an executive from your staff, who will evaluate the seller’s customer base and product/service offerings.
In some transactions, one expert can serve multiple roles. For example, with appropriate conflict-of-interest disclosures, Stuart has represented both the buyer and seller in several deals. This approach reduces costs and expedites closing because one professional prepares the documents with no back-and-forth between attorneys on boilerplate. The buyer and seller, if they desire, can engage other legal counsel to review particular provisions in the agreements that are of concern to them.
But which adviser from the list above should you hire first? There are two approaches to selecting your team. First, if you have a trusted associate, such as a Board member, executive, or a CPA or attorney who has M&A experience in your industry, that person may lead the acquisition team and help you select an investment banker. Second, if a trusted advisor isn’t available, choose an investment banker yourself. We recommend approaching an investment banker first because an investment banker usually directs the acquisition and coordinates the negotiations. In addition, an investment banker will know accountants and attorneys who have been successful in transactions in your industry. Interview the recommended candidates and pick advisors with whom you feel a rapport.
Many owners rely on the CPAs and attorneys who represented them in the past—which may or may not be appropriate. Obviously, an advisor who serves you well has your trust and understands your business and personal situations. However, they may lack the expertise or personality to handle a complex acquisition. So you may be working with a stranger on the most important deal of your career. Interview thoroughly and hire carefully. Systematically evaluate the candidates’ records:
• Are they thoroughly versed in the unique issues of your business?
• Have they represented other companies in your industry and closed those transactions successfully?
• Do they understand the tax laws involved in structuring your deal?
• Are they familiar with pricing issues, earn-outs and representations, and warranties that are common in your industry?
• Will they appear credible to the seller?
Take a long, hard look at your current advisers to decide if you will need more qualified advisors to ensure the deal will go through.
If you don’t have a full-time acquisition specialist on your staff, you will probably need to hire an investment banker to direct the search and screening process. Investment bankers often are in contact with owners who have expressed a desire to sell. Buyers are at a disadvantage in such cases because parameters of the sale have already been determined. For example, sellers choose a time to sell, the asking price, and the payment terms. A buyer can only respond. However, that doesn’t mean you are at the mercy of a seller. At times, a buyer can initiate the inquiry to a seller who has not publicly announced an intention to sell. Investment bankers know how to conduct such inquiries and create seller interest when none had existed. We recommend that you provide written acquisition criteria to several investment bankers, interview them, and select the one who understands your objectives best and has a clear plan to find candidates.
Most growing companies lack the internal resources that a Fortune-1000 company can apply to an acquisition. So it is essential for them to recruit advisors to augment the availability and expertise of their staff. Some companies use a “war room” to conduct acquisition meetings and store confidential data. They find a war room helps communications and stimulates a feeling of shared purpose, especially among executives who manage acquisitions in parallel with other corporate functions. Even so, small companies can compete favorably with large companies in the acquisition arena by training executives in M&A processes and hiring experts on a retainer basis—avoiding the Jack the Rippers, of course!
© 2010 Hughes & Bentzen, PLLC.
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Thursday, 05 August 2010 |
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August 2010
D awn Stewart is licensed to practice law in all courts of the District of Columbia, Maryland and Virginia. Dawn has over twenty years of experience that includes bankruptcy and complex commercial litigation.
Ms. Stewart served as a law clerk to the Honorable Ross W. Krumm, U.S. Bankruptcy Judge, and represents debtors and creditors in all phases of bankruptcy proceedings. Hughes & Bentzen looks forward to Dawn Stewart teaming with Philip J. McNutt in significant bankruptcy cases in the future.
Dawn Stewart’s litigation experience includes cases representing insurance carriers on coverage issues and policy holders, including airlines and trucking companies, at the request of the carriers, in a variety of tort actions. In addition, she has experience in cases involving construction matters, breaches of contract, collections and business torts.
Hughes & Bentzen looks forward to Dawn Stewart’s professional association and collaboration in representing our mutual clients.
© 2010 Hughes & Bentzen, PLLC.
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Thursday, 05 August 2010 |
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August 2010
by James A. Kaminski, Esq.
O ften, a slight bending of the truth may result in greater market share for an aggressive competitor. The National Advertising Division (commonly called the “NAD”) is a forum that reviews advertising and makes a determination as to whether or not it is properly supported. The NAD does not have the authority to force advertisers to comply, but most do. Recently, the NAD addressed two types of claims that may appear industry specific, but are relevant for many advertising and marketing campaigns.
Loyalty Programs and “FREE” Claims
Office Depot challenged claims made in conjunction with loyalty programs – the popular marketing tool where consumers are awarded points as a reward for money spent. Think airline miles. Office Depot took issue with the way its competitors, Office Max and Staples, used claims to promote their loyalty programs, including “BUY ANY OF THESE SUPPLIES, GET 100% BACK IN STAPLES REWARDS” and “IT’S LIKE GETTING SUPPLIES FOR FREE.” The claims referred to the fact that consumers would receive a 100% match of an item’s purchase price credited to their loyalty program accounts.
Unfortunately, the rules of the loyalty programs contained certain restrictions that apparently undercut the “FREE” claims. For example, consumers were required to apply their loyalty program credits to the purchase of another product within a specified period of time. Further, the points were subject to cancellation. The NAD found that these type of restrictions made the use of the term “FREE” inaccurate, since ultimately a consumer might not obtain any product with the award. According to the NAD, “merchandise is free or it’s not.” Therefore, the NAD recommended that the companies discontinue or modify their promotions.
What’s in a Node?
Verizon Communications challenged Time Warner Cable and Cox Communications claiming that they falsely described their telecommunications services as “FIBER OPTIC NETWORKS.” To make a long story short, consumers typically receive their video, internet, and telephone services via a network that more or less contains a degree of fiber optic cables. The difference is that Verizon’s fiber optic cables extend from a base office to a terminal located outside of a person’s home. Non-fiber optic cables carry the signals the rest of the way.
The Time Warner and Cox networks consist of fiber optic cable as well, but only to a central box or “node” located in a person’s neighborhood. Coaxial cable then carries the signals the rest of the way to each person’s house in the neighborhood. The entire Time Warner and Cox networks consist of at least 90% fiber optic cable. The fiber optic content in Verizon’s networks is greater, but relatively speaking, not by much.
The NAD determined that only Verizon could accurately describe its network as “FIBER OPTIC” and that the term did not accurately apply to the other two providers’ services. In making its decision, the NAD looked at how others in the industry describe their networks, which cut against Time Warner and Cox. The NAD also examined statements that Time Warner and Cox issued about their own networks, such as in their SEC filings, that contradicted their “FIBER OPTIC” claims. At least one advertiser, Time Warner, disagreed with the NAD’s decision and is appealing it.
Conclusion
Whether advertising is accurate is not always an obvious decision. A few restrictions on how to redeem an otherwise free product may render it not free. Likewise, a few more yards of coaxial cable may mean that it is not proper to call a network “FIBER OPTIC.” Advertisers and marketers must consider how their products or services differ from those of their competitors when deciding how to structure marketing claims.
© 2010 Hughes & Bentzen, PLLC.
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Monday, 12 July 2010 |
July 2010
by Michael P. Bentzen and Stuart Sorkin
o n June 14, 2010 an article entitled “Planning for the Unthinkable” appeared in The Wall Street Journal (page R5), based on the premise that most 18-year-olds “probably should” have wills. To be sure, there are situations in which it would be important for a person of that age or a little older to execute a will. Many of those situations are discussed in the article, such as young parents with children or of wealthy parents who do not want to upset established family estate planning. Additionally, some wealthy families have transferred significant amounts to children in Uniform Gift to Minor Accounts to be used to pay for children’s education and as a part of a gifting program, however, absent a will, if a child dies, under the laws of intestacy, then these accounts will revert back to the parents. This is a clear case, where an 18 year-old child should have a will.
The drafting of a simple will is not inexpensive and self-prepared wills, following form books, may create more difficulties than they solve. Accordingly, it is the view of the Hughes & Bentzen estate planning group that the reasons for a will for a young person should be thought out and discussed with legal counsel (hopefully on a no charge basis) prior to acting on an impulse or engaging in self-help.
PICKING THE JURISDICTION IN WHICH TO BASE YOUR TRUST
The same issue of The Wall Street Journal (page R4) contained an article entitled “States Want Your Trust.” This article contained a great deal of substance in discussing selection of the State in which a trust could/should be based for various reasons. Trusts are governed by state law, and those laws vary greatly, including whether out-of-state beneficiaries can be taxed on trust income.
As the article noted some, perhaps most, states now permit trusts to last for hundreds of years – a term sometimes used is “dynasty” trust. The typical law not all that long ago required a trust to vest (be terminated) within a period of 21 years following the death of the persons (grantors or beneficiaries) living at the time the trust was created.
Other reasons to consider going out of state include protection of trust assets from personal liabilities of the grantor or future descendants. A properly drafted trust can protect the beneficiaries from third party creditors including spouses in a divorce. These types of trusts may also provide parents with some protections to prevent future generations from becoming “trust fund babies” or having access to trust funds if they develop a substance abuse problem.
Each of the reasons for going out-of-state may appear compelling. But, there are additional expenses involved, such as having a trustee in the foreign jurisdiction who collects an initial fee and annual fees, establishing an investment account in the foreign state (for example, Alaskan trusts have a $1,000 set-up fee, an annual maintenance fee of $3,000 and maintenance of a minimum of a $10,000 certificate of deposit in Alaska). However, the Alaska trust statute is the oldest in the country and the costs associated with a creditor challenging an Alaska trust from the East Coast is significantly more because of the time and expense associated with cross country litigation.
Therefore, there is a balancing required with the desired benefit on one side and costs and inconvenience of dealing with a foreign trustee and state. These are matters that should be weighed in consultation with the legal advisor. The premise in the article is correct. There are situations in which seeking out a favorable jurisdiction in which to establish a trust can make a huge difference to the grantors and beneficiaries.
© 2010 Hughes & Bentzen, PLLC.
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Friday, 04 June 2010 |
June 2010
by Bruce S. Deming, Esq.
S et out below are some basic points to keep in mind if you are ever in an accident. If you are injured as the result of the negligence of another driver, following these tips could ensure that your rights are protected should you need to seek compensation for your injuries and property damage.
• Stay put, and get immediate medical attention. If you’ve sustained injuries, don’t make a move until help arrives. Feeling numbness in any of your extremities? If you’ve injured your spine or sustained internal injuries, any significant movement could put you at serious risk. Await professional help whenever you can do so safely.
• If witnesses can be identified, ask them to give you their names and numbers right away. If you are in no condition to collect that information, ask someone to do it for you, and don’t be shy about it. You’d be amazed at how quickly caring witnesses can appear, and then fade into the woodwork and drift away once they see that medical attention and/or the police have arrived and that you are being taken care of. I believe in the goodness of my fellow humans, but in the end, lots of people who will eagerly tell you they “saw everything” often decide within a few minutes that they just don’t want to get involved. Get their names and numbers RIGHT AWAY so that they can be found again if their testimony is needed. If you’ve been hurt, it will be!
• If you or other witnesses on the scene have a cell phone camera or even regular camera, use it! Take pictures of the scene, the vehicles involved, your bike, and you. Take as many as you can. Too many is not enough. I’ve handled many cases where one single photograph, taken at the scene or later at the hospital, made all the difference later on in establishing liability – an essential element of an injured person’s claim for compensation. Once the vehicles are moved and the scene is cleaned up, you’ve lost an important opportunity to document what happened. If you can’t do it, ask someone else to, and be sure to get their contact info so they can email you the pictures. Again, don’t be shy about this. Your rights may depend on it, and once the opportunity is gone—well, it’s gone.
• Once medical help arrives, if you find yourself in a hospital emergency room, cooperate fully with your doctors and attending nurses, but don’t volunteer a lot of detail about how the accident happened unless they specifically ask you for purposes of understanding your injuries. Quite often, accident victims are in shock and details can be hazy – especially if you’re on an IV with strong painkillers. If you give confusing information and someone writes it down wrong in your chart, those statements can come back to haunt you later if they differ from more accurate, subsequent statements and accounts rendered later on. Even if you are clear headed when you arrive at the hospital, I’ve seen cases where ER personnel simply misunderstood a patient’s description of the accident and put the wrong information down on the chart. Avoid this by simply answering their questions and staying focused on your care and treatment. If you insist on telling anyone and everyone in that ER what happened over and over (as many people want to do when they’ve just been through a traumatic event such as an accident involving serious injuries), the chances are someone is going to write it down on your chart in a way that is inaccurate, incomplete, or both.
• If you are transported to a hospital, call a friend or loved one. Have them take photos of you and your injuries at the hospital or as soon as possible in the days thereafter (at an appropriate time, of course, so you don’t interfere with treatment and you do respect the privacy of other patients). These photos can be valuable in thoroughly documenting the nature and extent of your injuries sustained. Don’t be embarrassed to do it. No one else will.
• Follow up with all recommended medical treatment in the weeks and months following the accident. I cannot emphasize this enough. Unexplained “gaps” in treatment may have a significant, adverse effect upon your case.
• If another vehicle caused your accident and took off, make sure you file an immediate report with the local police. If you are physically unable to go to the appropriate police station to file a report, call the police to report it – from the hospital if necessary. If you have uninsured motorist insurance coverage, your policy may cover your injuries regardless, but if you fail to file a timely police report, the odds are that your carrier will deny the claim. If that happens you may have to file a “John Doe” suit against your own insurance carrier to secure your recovery – an uncertain recovery that could take much longer than might otherwise be necessary.
• Don’t give statements to insurance adjusters - especially adjusters representing the other guy’s insurance company - unless you’ve at least spoken with an attorney. Typically, you will receive a phone call from an adjuster within a day or two – sometimes within hours – of the accident. These people will come across as the most caring, compassionate friend you’ve ever had. They just want to “ask you a few questions for the file” so they can “take care of everything for you,” etc. Typically, once they establish rapport with you, they will ask “if it’s okay to record a short statement” from you just to “complete the file.” DON’T DO IT. They also may ask you to sign and fax over “a few simple forms” to begin the claims process and “make sure you are taken care of right away.” DON’T DO IT.
• I am not trying to make a blanket statement about all adjusters here because I have worked with a great many who were ethical, honest and straightforward. I have also worked with a great many who were none of these things, and who will do or say anything to get you to compromise your case. In some cases, adjusters may try to get answers to questions completely out of context, so they can use them later to make a case for contributory negligence, thereby making it potentially impossible for you to be compensated. Don’t fall victim to these practices. Tell them you will be in touch with them in a few days, get their name and phone number, and politely hang up. The longer you stay on that phone (and believe me, they will say anything to try and keep you on that phone), the greater the risk that you will say something that could jeopardize your claim.
• If and when a statement is made to an adjuster to the effect that no physical contact was made between your bike and the offending vehicle, rest assured that they will deny the claim. If contact was made, however, even a graze to the front tire, you may still have a compensable claim for negligence.
• Say little or nothing about how the accident happened to anyone unless asked directly by an officer, before and after you leave the accident scene. Despite their excellent training, plenty of officers unfortunately have an attitude towards motorcycles and speed and may try to get you to admit you were speeding without any objective evidence that you were doing so. Be aware that any admission at all on your part could spell the end of your claim due to the doctrine of contributory negligence if it applies in your jurisdiction.
• Keep a personal journal of your treatments, including related time away from work. (Note all doctor visits and dates, and treatment received.) You would be amazed at how quickly you can lose track of dates and specific types of treatment you received. Keeping track of it all may be tedious, but could be enormously helpful to your case down the road, and will be a tremendous help to your attorney should you decide to hire one.
• Track time off from work for injury treatments and recovery carefully, and document your reason for taking leave with your employer, including time taken for travel to and from subsequent doctor’s and physical therapy appointments if you have them. (Lost wages need to be thoroughly documented with pay stubs and written statements from employers confirming that you were absent and why.)
1 Please use your common sense here. Obviously, if a doctor is asking you a specific question about the impact or anything else that bears upon treatment, I’m not suggesting for one second that you hold back information that could be vitally important to your proper diagnosis and treatment.
© 2010 Hughes & Bentzen, PLLC.
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Wednesday, 02 June 2010 |
June 2010
O n May 8, 2010, several members of Hughes & Bentzen participated in the Foundation Fighting Blindness annual Vision Walk in Reston, Virginia. This was the 5th annual Vision Walk but the first VisionWalk for the newly created Northern Virginia Chapter of the Foundation.
The Foundation Fighting Blindness is dedicated to the cure of retinal diseases such as Retinitis Pigmentosa and Macular Degeneration. Many of these diseases are genetic in nature. Recent advances in genetic testing and research have not only provided hope for actual and permanent cures of these devastating diseases, but have actually reversed blindness in clinical trials of new genetic delivery system techniques.
It was a fun morning for the firm punctuated by raising needed money for a good cause.
© 2010 Hughes & Bentzen, PLLC.
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Wednesday, 26 May 2010 |
May 2010
H ughes & Bentzen, PLLC, is very pleased to welcome Bruce S. Deming, Esq., as of counsel to the firm. Bruce recently published an important new book for motorcyclists injured by negligent drivers – WRECKED: Your Legal Rights in a Motorcycle Accident. The book costs $16.95 and is available on www.Amazon.com.
Bruce Deming has been practicing law for over twenty-six years. He handles personal injury cases on behalf of injured clients in Virginia, Maryland and the District of Columbia. In addition, Bruce’s litigation expertise includes criminal law matters and civil litigation.
Bruce recently competed in, and placed 5th, in the 9 Hours of Cranky Monkey Mountain Bike Race at Rocky Gap State Park in Maryland. Bruce’s comment afterwards was “If I could sum the race up, it’s sort of like being in a 9-Hour plane crash.” Obviously, his expertise regarding two-wheeled transportation extends beyond legal research.
Bruce S. Deming is an important part of the Hughes & Bentzen litigation team. We look forward to working with him on behalf of our mutual clients for a long time to come.
© 2010 Hughes & Bentzen, PLLC.
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Monday, 10 May 2010 |
James A. Kaminski, Esq.
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May 2010
W ays to market to consumers over the internet have changed exponentially over the years. More goods and services are promoted and sold over the internet than ever before. Unfortunately, clever competitors have developed new ways to redirect revenue streams, costing businesses millions. Further, a disgruntled customer can inflict serious damage on a company’s reputation in an attempt to dry up sales. Even if these tactics drive traffic away from a web site for only a day or two, millions of dollars and much good will can be lost. Consider these scenarios:
Scenario 1: You take great efforts to ensure that the terms and conditions of your offer are fully disclosed to consumers on your web site. You are the market leader. You recently noticed a decrease in market share. You survey your competitors and learn that the overwhelming majority are not disclosing the terms of their offers in a manner that consumers are likely to see – far from an “I Accept” button for example. You contact the companies and they ignore you.
Scenario 2: A disgruntled consumer has it out for you. For whatever reason, he is unhappy with the service you provide. He posts scathing and untrue diatribes about you personally and your company on consumer “advocacy” and critique web sites. Worse, he recommends that other consumers contact your federal, state or provincial authorities and file a complaint. You begin receiving no less than five inquiries from those authorities daily and you become concerned that a government lawsuit is imminent. You contact the consumer web sites to explain the situation and they refuse to eliminate the posts.
Scenario 3: A publisher in an advertising network purchases your trademarks as key words in Google’s ad words program. When consumers try to search for you, an ad appears that links to your competitor’s web site. You contact Google, but they are non-responsive because their policy is not to get involved in a case like yours. The ad network claims that they have no way of getting the publisher to stop. Online sales decrease 25% in the first day the ad runs.
These and countless other situations may severely impact the number of consumers visiting your web site and drive down revenue. Don’t lose hope, however, because there are certain measures you can take to reduce or eliminate the negative effects of such tactics.
The most effective way to address each scenario described above is to devise a multi-pronged approach that pulls out all stops. Obviously, the first thing to do is to contact the company directly and ask them to stop or change the activity. In the case of the consumer advocacy web sites, there may be internal policies that provide some recourse against false postings. Unfortunately, these efforts usually fall short, requiring more creative actions.
Third parties are often more objective and receptive to helping. Service providers, such as hosting companies and domain name registrars, frequently have policies that prohibit illegal, and sometimes otherwise legal, activity. Google, for example, may work with you to remove a deceptive ad.
Nevertheless if all else fails, more extreme measures may be necessary. Self-regulatory bodies such as the Electronic Retailing Self-Regulatory Program may serve as a type of arbiter in your dispute. Government regulatory agencies may also have an interest in getting the conduct to stop. Ultimately, a lawsuit may be necessary.
To sum it up, the internet provides a means to promote your products and reach audiences in ways that were never possible. The same advantages of internet marketing also serve as a detriment -- especially when a bad actor is able to hide behind a cloak of anonymity and target your business. Nevertheless, marketers should not feel helpless when they become victims of such tactics because there are often ways to get the activity to stop. Well-devised strategies may result in success rates that approach 60%-70%.
© 2010 Hughes & Bentzen, PLLC.
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Wednesday, 05 May 2010 |
May 2010
I n preparation of Wills and Trusts for clients, consideration of what to do about IRA and 401(k) accounts may be overlooked. Like life insurance, these investment vehicles do not pass to beneficiaries by Will and cannot be held in a grantor trust prior to the death of the account holder. Upon death of the holder, the contract establishing the IRA or 401(k) determines who will receive the proceeds.
There are significant tax implications depending on the choice of beneficiaries. Where a beneficiary dies before receiving any required distributions from an IRA or 401(k), the beneficiary’s entire interest must be distributed within five years after his death except where the beneficiary's interest: (1) is distributed over the life of a designated beneficiary (or over a period not extending beyond the life expectancy of the beneficiary) and the distributions begin no later than one year after the date of the beneficiary’s death (Code Sec. 401(a)(9)(B)(ii), Code Sec. 401(a)(9)(B)(iii)), or (2) is distributed over the life of the surviving spouse (or over a period not extending beyond his/her life expectancy), and the distribution begin no later than the date on which the beneficiary would have reached age 70 1/2. If the surviving spouse dies before payments must begin, then the 5-year rule applies as if the surviving spouse were the employee. Since an estate or a trust does not have a life expectancy, the above described exceptions do not apply and then the entire corpus of the IRA or 401(k) is subject to tax over a five years period. However, if the beneficiary is a person (likely to be in a younger generation) his or her life expectancy would be longer and the resulting payout period would be extended thus enabling the funds to be retained, tax free, to grow over the additional time available. Further, if the beneficiary is entitled to name successor beneficiaries, the effect can be material in terms of earnings during their lifetimes.
The potential importance of these considerations is shown by an example published in the AARP March & April 2010 magazine at pages 25-26. In the example, an IRA containing assets valued at $400,000 on the date of death are left to a 40 year old daughter, whose life expectancy was then 43.6 years. Her initial withdrawal would be $9,174 and would be taxable. However, the IRA balance would grow, possibly at 12%, to something in the range of $1.2 million by the time she is 65 (and she would have drawn out $671,000). Obviously, such sums greatly exceed what would be received if the IRA had to be paid out (and taxed) over 5 years or over the much shorter life expectancy of the deceased holder.
Not every client has a primary concern to defer taxes and some may be more concerned with placing valued assets under the immediate care of a trustee to protect interests of certain beneficiaries or even future generations. But, it is clear that this issue needs to be addressed during the estate planning process and resolved in a way that meets the client’s informed preferences.
© 2010 Hughes & Bentzen, PLLC.
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Thursday, 09 July 2009 |
July 2009
For more information contact Jim Kaminski at
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or 202-293-8975.
L aw enforcement authorities nationwide are stepping up their efforts against e-commerce sites which sell goods and services in conjunction with automatic monthly billing plans (also referred to as “continuity programs”). A good example of this prosecutorial activity is the Arizona Attorney General’s Office recent law suit against Central Coast Nutraceuticals, Inc. (“CCN”). Under the settlement agreement concluded in June 2009, CCN will pay $1,375,000 for consumer restitution, penalties, and costs, as well as submit to significant restrictions on its business practices. The Arizona Attorney General’s complaint alleged that CCN used deceptive and misleading sales and advertising practices in selling its nutritional products and fitness consultation services over the internet.
Specifically, CCN advertised a “$1.00 risk free trial offer” for its goods and services. Consumers were obligated to pay a “shipping and handling” charge of $4.95 to take advantage of the offer. Consumers were also required to enter their personal information, including credit and debit card details, on a billing page that included two pre-checked boxes for offers involving additional dietary supplements. Consumers were charged $39.90 for these products. Consumers were also automatically enrolled in a fitness and diet consultation service called “Fit Factory” for another $29.95 per month, and a “Lifestyle” program which was billed on a monthly basis. All of these programs required consumers to take affirmative steps to cancel their memberships to avoid the additional charges.
The Arizona Attorney General found that the term “risk free” was misleading because the offer allegedly carried a degree of risk, finding specifically as follows: First, CCN required consumers to return the trial product within a short trial period. Some consumers did not receive the product until the trial period expired. Second, CCN required consumers to obtain a Return Merchandise Authorization and pay for return shipping. The Arizona Attorney General viewed this requirement as onerous. Third, CCN in some cases charged consumers for additional orders before the trial period had expired. Fourth, CCN presented contradictory information in its promotional materials as to when the trial period expired. Lastly, the Arizona Attorney General alleged that the terms and conditions were not adequately disclosed because they were buried in fine print. As such, the pre-checked boxes were ineffective disclosures of the material terms of the offers.
The Arizona Attorney General also alleged that CCN failed to properly provide refunds by requiring consumers to overcome many obstacles, such as facing telephone hold times of over an hour with customer service representatives. CCN also did not respond to consumers’ emails containing cancelation requests.
As a result of the allegations and the subsequent settlement, the Arizona Attorney General was able to obtain a large financial penalty, and other relief against CCN, including the following: CCN is now prohibited from claiming that consumers may obtain a refund unless the company sets up a dedicated customer service line and responds to those requests within a 24-hour time frame. Prior to purchase, CCN must obtain affirmative consent from the consumer to the terms of the offer. The disclosure containing the material terms must be placed in close proximity to a clear and conspicuous description of the offer. A similar disclosure must also be included with the receipt of the product. CCN is prohibited from charging for the products prior to the expiration of the trial period.
And, perhaps most significantly, by CCN’s settlement with the Arizona Attorney General, the company must now pay $1 million in civil penalties to the State, $350,000 in consumer restitution, and $25,000 for legal and investigative costs.
As this case illustrates, marketers would be well-advised to clearly and conspicuously disclose the terms of an offer prior to accepting payment from consumers. The State of Arizona’s case against CCN is a good example of why such disclosures are important.
© 2009 Hughes & Bentzen, PLLC.
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