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Archive for November, 2010|Monthly archive page

Social Media Helps PREVENT a Lawsuit?!

In Social Media, Technology Issues and the Law on November 2010 at 6:17 pm

With companies running afoul of most regulations and boundaries through social media use, it was almost refreshing to find this story of when social media is actually a PREVENTION tool for a lawsuit.

Rae Hoffman blogged a little note to the makers of Advil:

So, I bought a bottle of Advil when I was in the states due to the massive tooth pain I’ve been having. My best friend Stacey goes to borrow some and laughs her ass off when she starts reading the side of the bottle:

If you can’t see it… there is a huge box that says do not use if the seal is broken… closed off as its own statement. Then underneath, there are bullet points that instruct you to:

  • have three or more alcoholic drinks every day while using this product
  • take more or for longer time than directed

Hey Advil, you may want to consider adding a “Do not:” to the top of that bulleted list cause that reads as instructions, not warnings with the box around the top statement. 😉

With all the social media and digital media monitoring tools out there, this is a god-send to companies.  The people who could sue you, are actually the ones calling you out so you can fix a problem with your product.

Now that is the power of social media!


by: Benish Shah, Esq. & Sheheryar Sardar, Esq., Sardar Law Firm LLC

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Top 4 Legal Issues in Clean Tech (we know its not Social Media, but it’s still interesting!)

In Entrepreneurs and Social Media, Technology Issues and the Law on November 2010 at 5:24 pm

Clean technologies are receiving increased attention from a variety of stakeholders today. All levels of government, from local to federal, are providing tax abatements, grants and subsidies for the development of clean technologies involving solar, wind, carbon sequestration and nanotechnology. With global warming a household name and the “green” label in vogue, clean technology is enjoying a renaissance in the U.S.

Clean technology venture capital deals and financing have exponentially increased, from under $1 billion in 2002 to nearly $8.5 billion in 2008. Clean technology ventures currently leads the investment pack under the rubric of emerging industries, securing over $2billion in venture capital during the first quarter of 2010.

Challenges however remain. China has undercut U.S. solar panel developers with their rock-bottom prices while producing over four times as much megawatt power per panel in a quarter of the time. As a result, California companies now struggle to compete despite the favorable economic and regulatory environment afforded to them.  Further, many of the latest iterations of clean technology such as ethanol-based fuel and wind power have yet to be fully scaled for mass production, or even proven as sustainable mechanisms for supplanting traditional fuel generation.

Despite the global volatility of the clean technology industry and the limited remedial effects of the domestic legal infrastructure, there are creative legal solutions that can be individually negotiated into any clean technology venture deal.  These briefly addressed solutions, while not exhaustive, take into consideration both the capital-intensive nature of clean technology ventures and its lengthy beta-to-commercialization process.

1.    Method of Financing. Does your CleanTech venture seek debt or equity financing or a hybrid of both? What are the “Market Terms” for such financing? For example, interest rates, warrant coverage and related issues such as registration rights, anti-dilution protection and the warrant strike price for shares of the venture are all terms that should be addressed in any financing deal structure.

2.    Intellectual Property. Does your method, process or product have intellectual property protection? How is it distinct and unique from competing or similar technologies? Will it serve as collateral to any debt financing deal to the benefit of a lender in the event of default? Furthermore, IP litigation has become one of the most prolific and hotly contested areas of law, with grievances and lawsuits filed almost daily across the U.S. over who owns the rights to technical minutiae and against monopolistic behavior by competitors. For clean technology ventures operating on an international scale, additional IP issues arise in local or regional contexts, particularly under the European Union which tends vigorously enforce its anti-competitive regulations by mandating that technologies and know-how be open-source.

3.    Licensing. In terms of technology, there is a distinction betweenintegrated products, those products that combine technologies into systems, andcomponent-based products, illustrated by example as renewable batteries, photovoltaic membranes, or nanochips.  The degree of licensing to third parties will depend on how your product is characterized, the applied business model and the nature of the market in which it’s being introduced.  If your product is a component, licensing will be a primary way to engage customers and clients since it cannot be economically viable unless it’s utilized in other computing, industrial or communication hardware or software aggregated on a systemic level.

4.    Material Adverse Conditions. MAC clauses have received their fair share of attention across industries. As a contractual provision, MAC clauses define changes in the business, operations and conditions of a company that are material and adverse to the contracting party.  MAC clauses come up in both debt financing deals as a “catch-all” safety event for lenders in the event of default and also with clients and customers who seek to limit their obligations under an agreement should an adverse condition arise. Case law has generally imposed a high standard on contracting parties seeking relief under MAC clauses, often hinging on the precise language of the clause itself. A “material” change must be substantial, taking into account the long-term perspective rather than, for example, a drop in quarterly earnings due to market conditions or strategic business decisions.

As a CleanTech venture, a narrowly defined MAC clause, coupled with morecarve-outs, will impose a higher threshold on the contracting party should it want to void the agreement based on perceived adverse conditions.


The clean technology industry is growing and evolving at a frenetic pace. The legal framework is nascent at best. Emerging legal issues however, are becoming more nuanced as novel business cycles and disruptive technologies are upending the traditional corporate stratosphere. As legal issues sharpen, CleanTech ventures should understand from the outset that their financial success and competitive advantage is based not only on sky high visionary thinking, but the transactional details paving the road underneath.


Sheheryar Sardar, Esq.Benish Shah, Esq., Sardar Law Firm LLC





Jurors: Have you commented on a blog?

In Social Media, Technology Issues and the Law on November 2010 at 9:24 am

One of the questions asked to the jury pool in Washington asked: “Have you ever written a letter-to-the-editor or ‘blog’ about any story you may have read or heard about relating to violent crime?”

While juror questionnaires are different in every trial, the question shows that simply commenting on a blog is now something that one has to keep track of – and it has an affect on jury status.  The attorney on that particular case noted that the “blogging” question could help reveal whether potential jurors have pre-formed opinions about the case, the defendant, or violent crime in general.  If a possible juror admits to having commented on a news story a violent crime, it raises a red flag for an attorney and allows them to probe more.

Attorneys said they were looking for fair and impartial jurors – not the type that would pass judgment based simply on a news story without listening to any of the evidence.

So start memorizing when and what you comment on, because remember, jury questions are answered under oath.

by: Benish Shah, Esq. & Sheheryar Sardar, Esq., Sardar Law Firm LLC

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Skype & Family Court: Virtual Visitation Ordered

In Social Media, Technology Issues and the Law on November 2010 at 9:05 am

A New York judge recently ruled that as a condition of her out-of-state move away to Florida, a Long Island mother must make her two children available to talk to their father through Skype. This isn’t the first time that a judge has used a creative way to structure visitation, but it was the first time in New York.

Utah was the first to implement this type of structure, back in 2004.  Michael Gough, the divorced father of a four-year-old, asked a Utah judge to require his ex-wife to allow him to use Skype to speak with his child.  The theory is: phone conversations are short, but since this generation is very much the computer generation – online video chatting proves to be more interactive and last longer.

Many judges opt to keep non-custodial parents in contact with their children through the use of various social media tools such as email, instant messaging, and web cams.

The technological shift in custody cases has been criticized because there is a danger in substituting web chats for weekends spent together.  However, proponents argue that in cases on long-distance parental relationships, web chats are a much more interactive alternative.

Sheheryar Sardar, Esq. & Benish Shah, Esq., Sardar Law Firm LLC

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Indiana Player Suspended for Social Media Use

In Social Media on November 2010 at 3:54 am

Indiana’s Andre Kates was suspended for the game against Northwestern because he posted negative comments towards the coaching staff on his Twitter account.  After his suspension, he Tweeted: “I’m suspended for the game 2morrow for my Tweets and Facebook being Media attention and also a distraction toward Him!” (Speculation is that the “Him” Kates is referring to is head coach Bill Lynch, but we cannot confirm that).

This season, many football coaches have banned their players from using social media.  Some teams with these rules include Miami, Boise State, Texas Tech. These teams and several others have banned their players from using Twitter during the on-season.  However, this seems to be the first time a player has been suspended for being critical of a coach on his Twitter account.

Aside from some fan outrage that may result from this incident, one question that comes to mind is:  are there issues of free speech being violated?  Or is this just a simple contract issue, where the player’s speech is limited or controlled by his decision to contract it away?

by: Benish Shah, Esq. & Sheheryar Sardar, Esq., Sardar Law Firm LLC

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Brand Cautious – Social Media Means Accountability (ahem… Marie Claire)

In Entrepreneurs and Social Media, Social Media on November 2010 at 9:50 am

Earlier this week the Internet caught wind of a post on the Marie Claire site by columnist Maura Kelly, titled Should “Fatties” Get a Room (Even On Television)? on the Marie Claire blog. A few days later, after the story and severe criticism went viral, Marie Claire posted on Facebook a chipper comment akin to “And the controversy continues!”  Instead of apologizing, they provided a lukewarm response to the outrage – and readers didn’t seem to like it.

Marie Claire, much like many other brands out there, forgot a cardinal rule of social media use – brands are now held accountable for what they say, what they do, what they put out there.  It’s no longer the world of “we do what we can and you must deal.”  Social media has given everyone a voice and if brands want to use social media, they need to remember that it is social media – as in your readers and core audience can engage with each other.  So if you do wrong online, it won’t be easily forgotten.

And how does that apply to social media law?

It’s what we have said before: social media use must be intelligent and strategic.  Social media has opened up the door for brands to become human again, which allows for human mistakes.  But, no one wants true transparency.  They want the appropriate, the intelligent, the well-thought out.  Otherwise there will be backlash.  There will be viral comments that may affect the sales of a particular brand and the brand’s reputation.

Furthermore, it brings up legal questions such as: what do we do with the person who created the backlash?  Who do we blame?

In the world of print media, there are many levels of checks & balances and all the stories need to be thoroughly fact-checked and run through a difficult screening process.  The world of online blogging is quite different.  It is faster, shorter deadlines and the need of much more content.  To fulfill that, brands often fall short of their normally stringent processes.

So – it comes down again to the same quip – Assess, Influence & Evolve.  And then do it again.

Sheheryar Sardar, Esq. & Benish Shah, Esq., Sardar Law Firm LLC

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Social Media & Campaign 2010

In Social Media, Technology Issues and the Law on November 2010 at 9:52 am

We were amused today when we read that political experts feel that campaigns should no longer be looking at social media sites as a way to reach young voters.  Why you ask? Because they seem to feel that social media sites are full of people that are too young to vote.  (Before we get into the crux of social media and its affect on Campaign 2010 we would like to point out to the political experts that blogs are social media sites, and we are pretty sure that voting aged individuals use those.)

How has social media affected the campaign?

Incumbent U.S. Sen.Russ Feingold’s camp was able to use social media tools to raise nearly half a million dollars in just one day.  Candidates have thousands of Twitter and Facebook followers.  But the critical issue is the same issue that even businesses are facing:  the use of social media seems to be targeted only at the people that already support the candidate, instead of getting a new fan following.

The problem seems to be that there is a lack of strategic thinking in the use of social media.  Those controlling information dissemination through social media are focusing on putting information out there, instead of utilizing social media tools to engage with individuals who are on the fence or perhaps just don’t want to vote at all.

Then there is the untapped issue of campaign financing rules and campaigning rules in general and how they will be affected by the use of social media.  An interesting can of worms – let’s see how the elections go.

by: Benish Shah, Esq. & Sheheryar Sardar, Esq., Sardar Law Firm LLC

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