Date Posted: May 31st, 2013

Author:Gerbers Law, S.C.

Gerbers Law, S.C. was established May 31st, 2013 by Attorney Terry J. Gerbers.

For 20 years we have taken pride in providing outstanding legal services to the Green Bay and Fox Valley Communities.

We are extremely grateful to our clients, colleagues, families and friends who have made our success possible!

Date Posted: May 1st, 2013

Co-Authors: Attorney Stephen M. Ferris
Megan A. Eatough

As you begin your spring cleaning, you may also want to revisit your estate plan. As technology is beginning to play a more and more central role in our lives, it should have a role in your estate plan as well.

When making an estate plan, many people consider their investments, real estate, business assets, checking and savings accounts, but neglect to make a plan concerning their digital assets. Digital assets include social networking accounts such as Facebook and LinkedIn, email accounts and retail accounts such as Paypal and iTunes. Digital assets also include intellectual property you created and shared online, such as blog posts, photos, videos and graphics.

With technology moving faster than the law, many individuals and attorneys are left without specific guidelines for effective ways to plan for digital assets after death. There are only five states (Connecticut, Idaho, Indiana, Oklahoma and Rhode Island) that currently have laws to address digital assets on death. Even in these states, they don’t cover all of the issues. With this in mind, our team at Gerbers Law has compiled some tips to help you get started.

1. Make a Plan for Your Digital Assets

The distribution of your financial assets is, or will likely be, outlined in your will. Your digital assets, however, are often overlooked when wills are drafted.

Step one is to address your digital assets in your will.

Often, the first question to ask yourself is what you would like your digital life to look like after you aren’t present to manage it.

• Would you like family and friends to leave memorial messages on your Facebook page, or would you like the page deleted?
• Would you like to take down your blog or leave it online for others to read?


When planning for your assets upon death, social media should be considered a piece of the puzzle as well.
Image by greyweed via Flickr.

Some answers may be simple, such as having your email account disabled upon your death. But others related to social networking and any photos and videos you have posted online may be more difficult to answer and address. Another issue is whether you want to leave a final message to your online contacts. You can include this message, as well as how and when it should be distributed, in your estate plan.

The best way to avoid disputes with loved ones and digital providers is to clearly state your intentions in your will. If you fail to address these issues, it will be difficult for your Personal Representative to address these issues.

As you address your digital assets in your will, it is also important to address these issues when you designate your Power of Attorney. For example, Twitter and YouTube require a Power of Attorney for the account before they will make any changes to an individual’s account. If you don’t provide the person to whom you have granted a Power of Attorney the authority to address your digital assets, they may have difficulty getting a response from your digital providers.
 

2. Make a List of Your Digital Accounts and Passwords

When you begin this process, you may find that you have more digital assets than you originally thought. Remember that anytime you log in with a username and password, you have created a digital account.

We recommend including in this list not only the username and password for each account, but also the web address and e-mail account tied to each account.

Aside from the digital accounts we’ve already mentioned, you may want to consider:

• All social networking accounts, including Facebook, Twitter, Pinterest, Google+ , etc.
• Sites where you share video or photos, such as YouTube, Instagram or Flickr
• Accounts with utility, cable and cellular companies, e-banking accounts

 

3. Store Your Digital Information in a Safe and Private Place


Because your will could become public record, it is best to keep your list of digital accounts in a safe deposit box.
Image By Корзун Андрей via Wikimedia Commons


Because your will could become public record when filed at the courthouse, you should not include the list of your digital accounts in your will. Instead, we recommend storing the list of your digital accounts with your will in a safe deposit box. In doing so, you should make sure your Personal Representative has access to your safety deposit box and is aware of your list.

Contact your estate planning attorney and revise your will to give this person power of attorney over your digital accounts. Be sure that this person will have access to your digital accounts lists and knows your plan for each account in the event of your death.

 

4. Consider New Options Being Offered by Digital Providers

Google recently released a new feature, Inactive Account Manager, to address this growing problem. You can use this feature to program your accounts to be deleted after six or twelve months of inactivity. You can also specify contacts that will be granted access to your account after a specific time-frame of inactivity.

As Google Product Manager Andreas Tuerk writes, “We hope that this new feature will enable you to plan your digital afterlife — in a way that protects your privacy and security — and make life easier for your loved ones after you’re gone.”

When planning for your physical, financial and digital assets in the event of your death, it is important to contact an estate planning attorney who can make recommendations and provide you with the documents necessary to finalize your estate plan.

Contact our attorneys at Gerbers Law, S.C. for more information, or to schedule an estate planning appointment.

]]> http://www.gerberslaw.com/digital-estate-planning/feed/ 0 http://www.gerberslaw.com/do-google-search-results-violate-your-privacy-rights/?utm_source=rss&utm_medium=rss&utm_campaign=do-google-search-results-violate-your-privacy-rights http://www.gerberslaw.com/do-google-search-results-violate-your-privacy-rights/#comments Wed, 27 Mar 2013 18:20:04 +0000 Editor http://www.gerberslaw.com/?p=1440 Date Posted: March 27th, 2013 Author: Megan A. Eatough Gerbers Law, S.C.

A Wisconsin woman’s claim that Google search results for her name violate Wisconsin privacy and misappropriation laws was dismissed by the United States Court of Appeals for the Seventh Circuit on March, 6th, 2013.

The Elkhorn, WI woman, Beverly, “Bev” Stayart, alleged that Google violated her rights of privacy and against misappropriation, because searches for her name prompt suggested searches of “Bev Stayart Levitra” and advertisements for other erectile dysfunction medications, including Levitra, Cialis and Viagra. Furthermore, Stayart claimed that her name has commercial value and would be a competitive search term, due to her identity as a genealogy scholar and a “leader in the animal rights movement.”

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Date Posted: March 27th, 2013

Author: Megan A. Eatough
Gerbers Law, S.C.

A Wisconsin woman’s claim that Google search results for her name violate Wisconsin privacy and misappropriation laws was dismissed by the United States Court of Appeals for the Seventh Circuit on March, 6th, 2013.

The Elkhorn, WI woman, Beverly, “Bev” Stayart, alleged that Google violated her rights of privacy and against misappropriation, because searches for her name prompt suggested searches of “Bev Stayart Levitra” and advertisements for other erectile dysfunction medications, including Levitra, Cialis and Viagra.

Furthermore, Stayart claimed that her name has commercial value and would be a competitive search term, due to her identity as a genealogy scholar and a “leader in the animal rights movement.”

© Dbvirago | Dreamstime Stock Photos & Stock Free Images

Stayart filed another lawsuit of this nature against Yahoo in 2010, when she alleged that the internet search engine was associating her name with “links to online pharmaceutical companies, links to pornographic websites, and links that directed her to other websites promoting sexual escapades.”

That lawsuit was dismissed by the Chicago-based Seventh U.S. Circuit Court of Appeals, with the court concluding that Stayart did not have substantial commercial interest in her name.

Stayart then focused her efforts on Google. In Stayart vs. Google Inc., her complaint alleged that “Google violated Wisconsin Statute § 995.50 (2) (b), which protects an individual’s right of privacy, by misappropriating her name to generate financial revenue through online trade and advertising.”
Wisconsin’s Statute § 995.50 (2)(b) recognizes a right of privacy and prohibits misappropriation.

The Statute reads:

(b) The use, for advertising purposes or for purposes of trade, of the name, portrait or picture of any living person, without having first obtained the written consent of the person or, if the person is a minor, of his or her parent or guardian.

The Wisconsin district court dismissed her lawsuit against Google for failure to state a plausible claim for relief which can include:

(a) Equitable relief to prevent and restrain such invasion, excluding prior restraint against constitutionally protected communication privately and through the public media;
(b) Compensatory damages based either on plaintiff’s loss or defendant’s unjust enrichment; and
(c) A reasonable amount for attorney fees

Gregory Stayart, her attorney and husband, appealed the decision, which reached the United States Court of Appeals for the Seventh Circuit.

In a brief ruling, the court concluded that Stayart had not “articulated a set of facts that can plausibly lead to relief under Wisconsin’s misappropriation laws,” because the use falls within two exceptions:

If Stayart could improve SEO and rank for her positive search results, such as those in green, she could push the negative, or red, results down to the next page.

1. Public Interest

   The court decided that, by suing Yahoo over the matter in 2010, Stayart had herself made the search term “Bev Stayart Levitra,” a matter of public interest. The public has a right of access, guaranteed by the First Amendment, to information that appears before the court. Because a paper trail of court documents related to this matter has been created, the court ruled it would follow that, “the search providers and indexes that lead the public to those documents or that capture key terms related to them are likewise entitled to that exception.”

2. Incidental Use

   In order for a case such as Stayart’s to be actionable, there must be a substantial connection between the use of the individual’s name or likeness and the commercial or financial purpose of the use. Because Google Suggest, the program that prompts the suggestion “Bev Stayart Levitra,” is based on an algorithm that takes into account popular search term combinations, and the paid advertisements generated by this search seem to be linked to the term Levitra, rather than her name, the court views this use as incidental rather than substantial. Furthermore, the court decided that the search suggestions and results were not substantially linked to any financial gain.

From a Marketing Perspective

Now that we have examined the legal implications of this case, I would like to examine it from a marketing perspective in terms of online reputation and the way that Google’s Search Engine Results are generated.

To me, it seems as if Stayart is going about this the wrong way. First, as the court noted, by pushing these matters through the court system, she is driving public awareness and interest in the search terms “Bev Stayart Levitra.” The plethora of legal and technology blogs that have been written about this case will guarantee that her name continues to be associated with not only Levitra, but failed civil suits as well.

Furthermore, neither Yahoo nor Google not control, on an individual basis, what will display in search suggestions and results. It is likely that on a website, blog, or possibly even a page created by a “splogger” (people or bots that remix content to produce search engine bait), her name has been strongly associated with Levitra and the other unpleasant results that it generates. Google and Yahoo merely use algorithms to display useful content to the user, they do not create the content. A proactive marketing method would be to track down the pages which feature her name, perhaps through the search engine results themselves, and request the removal of her name by the site owner.

Lastly, Stayart could create an online reputation for herself that is more omnipresent than the one she currently has. Because she asserts that her name has “significant commercial value,” she should put time and effort into cultivating that value. By creating a blog, website, and social networking profiles, she could associate her name with more positive search terms, and terminology that creates the reputation she desires. With enough compelling content and SEO, she could regain control of the search results related to her name.

If you or your feel that your rights to privacy, or those of your business, have been invaded, or that your online reputation has been damaged, our attorneys would be happy to discuss the matter with you and help you determine a reasonable and positive course of action.

Date Posted: March 14th, 2013

Author: Megan A. Eatough
Gerbers Law, S.C.

Two Wisconsin law firms engaged in an extended litigation debate over online advertising keywords may set the precedent for future disputes over the state’s publicity and privacy rights in advertising.

Via Danard Vincente

On February 21, 2013, a Wisconsin Court of Appeals ruled that buying search engine ads generated by a business competitor’s name does not violate their privacy or publicity rights.

This Wisconsin keyword advertising lawsuit involves two competing personal injury law firms. It began in 2009, when Cannon & Dunphy placed keyword triggered advertisements on the words “Habush” and “Rottier,” the names of two partners at Habush Habush & Rottier.

By bidding on these keywords, Cannon & Dunphy’s advertisement would show up under the “Sponsored Links,” section for Google or Yahoo! search engine whenever users searched for the competing firm.

Habush and Rottier sued under Wisconsin’s privacy law, citing Wisconsin Statute § 995.50, which entitles anyone “whose privacy is unreasonably invaded,” to seek compensatory damages and attorney fees.

Section 995.50(2) states that this invasion of privacy can include, “the use, for advertising purposes . . .  of the name . . . of any living person, without having first obtained the written consent of the person . . .”

According to the Court of Appeals Decision, the “use,” of the names by Cannon & Dunphy is of a non-visible nature, and not found in or on the defendant’s product or advertisement. It it is also, “merely a mechanism by which Cannon & Dunphy places its advertising near a link to information about Habush Habush & Rottier.”

The court concluded that buying ads on a competitor’s keywords does not differ than physical proximity advertising and likened the use of keyword association to:

1. A Car Dealership that locates Across the Street from an Established Car Dealership
2. A  Business that Places Advertising Billboards next to a Competitor’s Existing Billboards
3. A Lawyer Placing a Yellow Pages Ad in Proximity to the Phone Listing of Competing Lawyers

In a way, the circuit court compares search engine results to physical real estate, concluding that, because a Wisconsin law firm can legally open an office next door to a competitor, bidding on a competitor’s keywords to gain web proximity should also be allowed.

Some reactions from the legal blogging community label the decision as a victory for small firm advertising, while others compare the practice to identity theft, calling the strategy “shady.”

An appeal to the Wisconsin Supreme Court is likely inevitable, and that ruling will not only significantly impact online advertising strategies within the state, but may also serve as a precedent for similar litigation actions throughout the country.

If you feel your business or personal name or image has been used in advertising without your consent, or if you are seeking a personal injury attorney, our skilled Wisconsin lawyers can help.

Date Posted: February 21st, 2013

Authors: Megan A. Eatough
& Gerbers Law, S.C.

Via westy48 on flickr

When Liebeck vs. McDonald’s Restaurants, was filed in 1992, it was branded by the media as a prime example of the excess and frivolity of tortlaw, and used as a primary argument for tort reform. The general story (that spread like wildfire) was that a woman, while driving, received burns from hot coffee that she spilled on her lap and decided to sue McDonald’s.

But was the lawsuit unjustified?

The little-known facts tell a different story. Stella Liebeck, 79 at the time, was actually a passenger in the car her son was driving. After making purchases at the McDonald’s drive-thru, he pulled into a parking space so Stella could safely add cream and sugar to her coffee.

As Stella removed the lid, the entire cup of coffee spilled on her lap, resulting in severe third degree burns.

Stella was in the hospital for eight days while receiving skin grafts and recovering from the burns. She would require treatment for the next two years.

The jury originally determined that McDonald’s was 80% liable, and had engaged in willful, reckless, malicious or wanton conduct because:

• McDonald’s policy required that the coffee to be served at a temperature that would cause 3rd degree burns in less than three seconds.
• At the time, McDonald’s was aware that the hot coffee had severely burned more than 700 people in the 10 years preceding this lawsuit; in fact, most had been paid off by out-of-court settlements.
• McDonald’s acknowledged that their customers were unaware of the danger presented by the hot drinks, and that they had not made an effort to warn them.

After an appeal, McDonald’s finally settled the product liability lawsuit privately, paying Stella Liebeck an undisclosed amount.

Proponents of Tort Reform twist the facts of this lawsuit to conform to their position that Americans sue too much. However, as the facts illustrate, Stella Leibeck did suffer substantial injury as a consequence of McDonald’s actions.

So how can you determine if you may have a justifiable lawsuit?

If you have endured physical or monetary damages, which are demonstrable in court, contact a civil litigation attorney.

The attorney will most likely sit down with you to review the facts of your case and determine whether or not there are grounds to proceed with a lawsuit.

Date Posted: February 14th, 2013

Co-Authors: Megan A. Eatough
& Attorney Stephen M. Ferris

This Valentine’s Day, we are writing to tell you about a new way to show your loved ones that you care: by planning your estate.
This is the best valentine you can give to your family and we will highlight the top reasons below.

1. Take care of your children, even in the event of your death.

© Jeancliclac | Stock Free Images & Dreamstime Stock Photos

When planning your estate, you can eliminate uncertainty by making decisions about what would happen to your children if you were unable to take care of them. You will have the opportunity to nominate guardian(s) who you know are a good fit for your family. Without a will, it would be up to the court system to appoint a guardian, and that decision may not reflect  what you think would be best for your children.

2. Protect your loved ones from the stress of difficult medical and care decisions.

When a loved one is sick or injured, and can no longer make decisions on their own, the stress of handling these decisions often adds to the weight of an already trying situation. By appointing a power of attorney for health care and making plans for certain medical situations, you can ease this stress for your loved ones.

3. Give back to those who loved you.

Planning your estate in advance represents an excellent opportunity to decide to whom you will gift your assets as well as when and how they will be received. This not only gives you the opportunity to give gifts and show gratitude to your family and friends, but you can even provide incentives that send messages to your younger heirs. For example, you can gift money “upon graduation from high school,” or to be received when an heir reaches a certain age. You can even begin gifting assets in installments while your loved ones can still  thank you. In addition to giving to your loved ones, you can also disperse assets to organizations such as charities or your alma mater.

4. Protect your loved ones from legal fees, expense, struggle and argument.

When a plan for your assets is unclear, and loved ones may disagree on how to distribute your estate, it often ends up to in court. Court can be a lengthy, painful and expensive process, during which your family may be deprived of any access to your assets. It is also not uncommon for disagreements over an inheritance to sever family relationships among survivors.

© Lisaturay | Stock Free Images & Dreamstime Stock Photos

5. Give the Gift of Peace of Mind

With an estate plan in place that considers many possible situations, you and your spouse can rest assured that your family will not struggle with financial or legal issues should you fall upon illness or pass away. With that confidence and serenity, you will be free to enjoy life’s pleasures in the moment.

If you’re looking for a Valentine’s Day gift that will keep on giving, call our skilled attorneys at Gerber’s Law, who will sit down with you to create a plan that is perfect for you and those you care about.

Date Posted: January 24, 2013

The Manti Te’o hoax, in which Notre Dame fans, media entities, and allegedly the Heisman runner-up himself, were fooled by a false Twitter account, is drawing more attention to the legality of false online identities and online impersonation.

Photo by Shotgun Spratling/Neon Tommy

The Twitter account claimed to be Lennay Kekua, Te’o's girlfriend, who the media reported passed away in September on the same day Te’o lost his grandmother. The inspirational story made headlines three days later when Te’o mentioned the deaths in a post-game interview and pointed at the sky.

On January 16th, 2013, the sports news site Deadspin was the first to break the story that Lennay Kekua never existed. The hoax has not only created a buzz in the realms of social media and college football, but raised intriguing legal questions as well.

Did Ronaiah Tuiasosopo, the alleged originator of the hoax, break a law by creating a fake girlfriend for Te’o? Does Te’o have any legal recourse for these events that, if nothing else, made him look gullible and fraudulent in the public eye?

Creating a false identity online, sometimes called “catfishing,” is not generally prosecutable as a criminal offense. Several states, such as California, Washington and Arizona, have enacted online impersonation laws. However, these laws often require the false representation to involve an “actual person” and be for the purposes harming, intimidating, threatening, or defrauding another person. Social media attorney Bradley Shear points out that catfishing crimes are hard to prosecute, because, “some of these laws may infringe on the First Amendment and may eventually be declared unconstitutional.”

While criminal prosecution seems unlikely, the victim of a catfishing crime may be able to seek legal recourse by filing a civil lawsuit against the perpetrator(s) of the crime. Depending on the circumstances, the victim may be able to bring tort claims, such as intentional infliction of emotional distress, fraud, misrepresentation, or negligence. To succeed on his/her claims, the victim would need to prove that the perpetrator(s) acts were intentional and that he/she suffered some physical, emotional, or monetary damage. Recovery for mere embarrassment is unlikely unless it is directly associated with significant emotional distress or a monetary loss.

It will be interesting to see whether a civil lawsuit is filed against the perpetrator of the hoax on Manti Te’o, particularly if it effects Te’o's stock in the April, 2013 NFL draft. While a player’s individual draft stock is highly speculative, if Manti Te’o is drafted significantly later than he was projected before this story broke, he may claim that the hoax, and ensuing media backlash, cost him significant earnings from his rookie contract.

A large grey area still exists in the laws regarding catfishing, creating a false online persona to interact with others. However, in recent years, cases such as the Manti Te’o hoax are bringing the issue to light, and may prompt lawmakers to recognize the need for regulation.

Date Posted: January 16, 2013

Author: Attorney Nicholas J. Linz

In an era where nearly every person has access to the internet at home, at work, and on-the-go via their mobile device, a business’s online reputation can be vital to its success.

The internet offers countless forums for customers to publish their opinions and reviews at no cost from the comfort and privacy of their home. Two of the most popular and relied upon sources of information to today’s consumer, Yelp and Angie’s List, are dedicated primarily to providing online reviews. Nearly all major search engines, such as Google and Yahoo!, plus online retailers, like Amazon, Ebay and Overstock, offer the ability to post online reviews.

An increasingly common complaint I hear from my business clients is that they have received a negative online review which they believe to be false or unfair, and want to know what they can do about it. ‘Can I sue?’ and ‘who is responsible?’ are usually the first questions that I hear after a client receives a negative and potentially defamatory online review.

The answers are not always cut and dry, and I recommend seeking the advice of a business attorney with knowledge and experience in the laws of defamation, business, and trade disparagement. Whether your claim lies in the realm of libel, slander, or trade disparagement, truth will be an absolute defense for the reviewer. A truthful claim is not actionable, regardless of how negative or damaging it may be. Similarly, opinions are generally viewed as protected speech under the First Amendment and are usually not actionable. The difficulty is in distinguishing actionable speech from protected speech.

The law does offer recourse against online statements which are not substantively true and which go beyond that of a mere opinion. The number of lawsuits filed as a result of defamatory online reviews is increasing throughout the country, serving as a vehicle for businesses to recover losses incurred as a result of libelous statements. In addition, these lawsuits are sometimes used as a preemptive strike to prevent further damage and demonstrate to the public that online defamation will not go unpunished.

The most successful claims are those against the author of the review. Generally, the Communications Decency Act protects host websites such as Google, Yelp, and Angie’s List from claims arising from posts made by third-party users.

The act stipulates:

No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.

The author of the online review may be held liable for its defamatory or disparaging content, but not the review site that hosts the content.

Businesses need to be aware of the online reviews that are being written about them and that are available to the public. It is best to think of online reviews as a large conversation; though you may not have control over what others may say, you do have the option to join in. Internet marketing experts suggest that a polite response is a good strategy for addressing a review without further damaging your business reputation.

In some cases, a negative review may also be actionable. If you think you have a claim, seek the advice of an experienced attorney. Even if litigation is not available, it would be wise to address the negative review and create a strategy to manage your business’s online reputation.

Date Posted: January 10, 2013

Author: Attorney Terry J. Gerbers

Prior to December 2nd, 2011, Wisconsin had been enforcing one of the nation’s highest interest rates on civil monetary judgments.

However, on November 16, 2011, a bill entitled 2011 Wisconsin Act 69 was enacted to change the previously static 12% rate, with the impact of significantly lowering the rate of interest on outstanding judgments.

2011 Wisconsin Act 69, also referred to as Wisconsin Special Senate Bill 14, adjusted judgment interest rates to equal the Federal Reserve prime rate plus 1%. Although the prime rate does fluctuate, the calculated interest on a particular judgment will stay the same from the date the judgment is entered until the outstanding balance is paid.

For judgments entered on or before June 30th of each year, the prime rate on January 1st is used to calculate the interest, whereas judgments entered after June 30th will be based upon the prime rate on July 1st of that year. Whether calculating prejudgment interest or postjudgment interest, the prime rate will be calculated based on the date the judgment was entered.

For example, a judgment entered in the latter half of 2012 would be charged interest at 4.25% (the Federal Reserve Prime Rate on July 1st i.e. 3.25%, + 1%), compared to the former 12% annual rate.

With 36-month used car loans at a national average of 4.89% and fixed credit card interest at 14.02%, debtors are further ahead to pay other current liabilities and make judgment creditors wait.

Other states have since followed Wisconsin’s lead in changing the method in which judgment interest is calculated. For example, as of July, 2011, the Arizona legislature changed its statute to set judgment interest at 10% or the prime rate plus 1%, whichever is lower. Arizona previously had a flat 10% annual rate.

Parties can avoid the recently enacted interest rates on judgment payments by negotiating a contracted rate of interest. All businesses should seriously consider incorporating a stated rate of default interest into their agreements relating to the sale of their goods and/or services. The failure to do so will likely result in further delays in collecting delinquent accounts, even after a judgment is obtained.

Date Posted: June 11, 2012

Author: Gerbers Law, S.C.

Many contracts have automatic renewal or extension provisions that extend the contract, which provisions are often referred to as “evergreen” clauses.  There is a new law in Wisconsin that governs the use of this type of clause.  Effective May 1, 2011, Section 134.49 of the Wisconsin Statutes requires businesses to notify customers of automatic renewal provisions in business contracts.

A business contract is defined in Section 134.49(1)(a) as a contract that is entered into for the lease of business equipment used primarily in this state or for providing business services for the direct benefit of the end user of the business equipment or business services.  Certain contracts are excluded from the definition of a business contract, including contracts for the lease or purchase of real property; contracts for the lease of equipment or purchase of services that are for personal, family or household purposes; contracts for the lease of a vehicle or medical equipment; contracts for the lease or purchase of telecommunications service, including commercial mobile service, if certain conditions are met; contracts that allow a customer to terminate an automatically renewed or extended contract by giving the seller notice, but only if the contract does not require the customer to give notice more than one month in advance; and contracts to which a federal, state or local government is a party.

If a business contract that has an initial term of more than one year provides that the contract will be automatically renewed or extended for an additional term of more than one year, the provision is unenforceable unless the seller provides the customer notice at least 15 days, but not more than 60 days, before the renewal or extension with the following information:

(a)   A statement that the contract will be renewed or extended unless the customer declines renewal or extension;

(b)   The deadline for the customer to decline renewal or extension;

(c)    A description of any increase in charges that will apply after the renewal or extension; and

(d)   A description of what the customer must do to decline the extension or renewal.

Section 139.49(4) governs the manner and form of the seller’s notice to the customer.  The notice must be in writing, and it may be delivered in one of six methods depending on the contract.  If the notice is provided on a monthly invoice, the notice must be prominently displayed in bold face type and in a type size no smaller than 12-point.

Businesses that fail to comply with Section 134.49 will not be able to enforce a renewal or extension, and the business contract will terminate at the end of the current term.  In addition, the new law allows customers to bring an action or counterclaim for damages against a seller for violating the statute.  Damages may include twice the amount of damages incurred by a customer, including the customer’s reasonable attorney fees.

If you lease or sell business equipment or services, you should take an inventory of your existing contracts to determine whether they fall within the scope of a “business contract.”  If you purchase business equipment or services, you will want to keep the new law in mind if you find yourself in the situation where you thought a contract expired only to find that the fine print automatically renewed and extended the contract.