Dexterity in my thumb and fingers was never honed by endless hours on a couch with an X-Box controller playing Madden or Mortal Combat. I would look at my phone’s key board and then at my fat thumbs and simply shake my head in surrender.

               But I quickly learned that if I wanted to communicate with my three kids (none of whom are kids anymore…) easily or, in reality, at all, I had better get with the program. Predictive text still haunts me but I’ve learned to thumb my way through “how was ur day?” as clumsily as the next old guy. I’m not quite at the point of texting my daughter across the dinner table (she’s tried), but I do communicate primarily by email with my paralegal Kate a few steps from my office door and keep up with friends and colleagues on social media messaging. Perhaps the clearest sign of my submission to the inevitable is that I have come to dislike the drudgery of checking voice mail. Remember voice mail?

               Yes, between email and texting and IM and social media messaging in its varied forms, the number of ways to communicate without ever actually speaking is astonishing.

               And it can lead to big problems when combined with continuing contract discussions.

               Just ask the parties in CX Digital Media, Inc. v. Smoking Everywhere, Inc. a recent Florida case in which a few seemingly off-the-cuff and quite informally short instant messages were deemed contract modifications. The instant messages…err… contract “modifications” cost Smoking Everywhere, Inc. $1.5 million buckaroos, enough dough to take this texting, IMing, emailing and messaging stuff seriously in your business dealings.

               Essentially, much of the dispute focused on what had been negotiated as a cap on sales commissions contained in the initial contract. However, during an otherwise benign instant message exchange between representatives of the parties, the CX rep mentioned, “We can do 2000 orders/day by Friday if I have your blessing.” This was ten times the 200 per day order cap on which Smoking had agreed to pay commissions. But when the Smoking rep replied saying, “NO LIMIT,” CX was obviously jazzed and responded with “Awesome!”

               And like that the contract was modified.

               There were additional and complex legal issues playing a part in the Court’s ultimate determination but the message (pun intended) is this: any communications between contracting parties may potentially be considered modifications to the original agreed terms. Just because you are not sitting around a massive cherry wood table in some glass tower conference room, lawyers in tow, does not mean your text or email won’t be considered a contract offer or counteroffer or an acceptance of either.

               So text until your thumbs get blisters but be careful. Words matter.

               All the best.

               Bill Yanger

               “Hey Yanger, me and my buddy wanna start a little widget business. LLC or one of those Sub-S thingies?”

               Or “My brother’s wife’s cousin’s neighbor’s plumber said I’d be stupid not to make my company a subchapter S. I say LLC. What’s the deal?”

                I can’t remember the last time someone came in or called and said, “Set me up in a good ol’ C-Corp please!”

                So what gives? Are plain-jane run of the mill corporations now passe’? Does anyone even operate a straight C-corp anymore?

                Well, of course they do. While flexibility and lack of rigid structure have made LLC’s the sexy business model of late and the smooth tax perks of a Sub-S make it an easy sell, there are darn good reasons to consider the tried and true C-Corp for small business entity structure.

                First, LLCs get taxed like partnerships and the partners, or “members,” have to wait until the partnership files its tax return before receiving a K-1. Depending on the size and complexity (and the efficiency of your CPA…) of the LLC, you may wait a significant period before being able to file your own taxes. With a C-Corp you can classify yourself as an employee and get a W-2 lickety split and file pronto. Plus, banks like to see W-2’s when you apply for financing. They kind of look sideways at K-1s.

                Second, if you are fortunate (and successful) enough to offer yourself and your employees benefits like medical coverage, childcare, life insurance and retirement, LLCs and Sub-S entities have significant limitations on the deductions allowed for these perks. C-Corps? Not so much.

                Third, the whole tax thing actually isn’t the lurking monster some make it out to be. Since C-Corps have progressive tax brackets, you (and your accountant*) can be creative and figure out the best plan in any given year to vary how much you pay yourself and perhaps avoid higher tax brackets for both you and the company. And if your company derives its revenues from the direct efforts of its employees like consultants and, yes, attorneys, it is reasonable then to dole out all of that revenue as income to the employees so the company’s income is negligible.

                Finally, if you simply hate corporate protocols like minutes and meetings and get all tingly over the loosey goosey management style an LLC affords, then what the heck, go for it. You can file an IRS Form 8832 and tell the IRS to tax your LLC as a C-Corp. Awesome or what?

                So LLCs are nifty things and Sub-S’s have their groupies. But don’t kick C-Corps to the curb. If you see one on the way home tonight, give it a hug. They need love too.

               All the best.

               Bill Yanger

               *I am not an accountant and don’t want to be an accountant. Talk to yours about your particular circumstance.

               But there is just no way around it. The reality is too stark and the lesson is too valuable.  So…

               We told you so.

               There, said it.

               Back in August, Congress pulled its epic fail on the debt ceiling crisis and then, with fingers pointing every direction but at themselves, dove head first into an orgy of self-congratulation after tossing the hot mess into the hands of the pompously named Super Committee and proclaiming to the world that they had “a deal.” In our post back then “Not In My World” (yes, by all means, read it again…) we said:

              “They have done nothing more than agree to agree…This is less governance than it is sanctioned procrastination. And in my world, the real everyday world, the world of business contract language that necessarily binds the parties to specific action and defines the consequences of failure or breach or inaction, slippery procrastination just don’t cut it, Brother. If you and your company are able to pawn off your tough and gritty decisions to some hazy “commission” and still turn a profit, more power to you. I suspect that is not the case.”

               As has become clear today, that slick dodge and toss in August has boomeranged back to Capitol Hill with a sickening splat. And it stinks. Badly.

               But told you so.

               An agreement to agree is not an agreement. It’s a negotiation, a delay, a punt. It is simply an invitation to be lazy now and then tangle later.

               Don’t do it.

               All the best.

               Bill Yanger

               Anyway, Mr. Crusty has a love-hate relationship with me. He loves me but hates the fact that I’m a lawyer and that there are times he must concede he needs me. He loves to call and challenge me with some twisted contractual problem he’s found himself in and from which he is certain I can find him no way out. He hates it when I do find that way out (not really, but he likes to say so).

               So he calls all giddy about this sales-dude jumping ship and he can’t seem to stop laughing about it.

               “Did you have him sign that non-compete we wrote you last year?” I ask him.

               “Sure, but who cares?” he barks back.

               “Okay…and why wouldn’t you care? You know we can go to court and shut him down today.”

               “Cuz I don’t give a rat’s carcass if Dim-Bob hightails it outta here.”

               “Really?” I ask. “You don’t care if he starts competing for your customers?”

               He snorts another belly laugh and tells me, “Billy, Billy, Billy. Look son, I sell the best frikkin’ [widget] out there and nobody’s better at followin’ up than we are.”

               “Okay,” I say. “And?”

               “And sure, you got that non-compete about as air-tight as they get. But if I’m giving my customers any reason to buy from his lame self, then you know what? That’s on me, my boy. On me,” he says.

               “So you don’t want us to get an injunction from the court? It is not something we can wait on. Judges don’t like it when you wait. Kind of makes your claim look weak.”

               “Nope. Dim-Bob will figure it out soon enough.”

               “Figure what out?” I ask.

               “He’ll figure out the real reason the grass is greener over there.”

               “Right, greener. Okay, I’ll bite. Why is the grass greener?”

               “Manure.”

               “Manure? You mean, like, uh, sh…”

               “Exactly! That place is a pile of shee-it! Hah! Looks real nice from here but you get close and…woo-wee…they can stink it up!”

               Okay, so Mr. Crusty approaches business and competition a little differently than most but the anecdote does provide some lessons.

               Whether it’s the economy or just something in the water, we are seeing a jump in non-compete litigation of late. And in spite of a common misperception in the business community that non-competes are simply an unenforceable waste of time, Florida actually has one of the more aggressively enforceable restraint of trade statutes in the country.

               Granted, there must be a “protected business interest” (five of which are specifically listed in the statute) that the employer is seeking to protect and the document must be tailored reasonably as to length of time, geographic area and the scope of work covered. While Florida does require a judge to fix certain faulty non-competes, no judge is going to enforce a document that says Dim-Bob can’t sell widgets anywhere in the world for the next 50 years. But a properly drafted non-compete should withstand the scrutiny of the even pickiest jurist.

               Of course, each circumstance calls for its own cost benefit analysis as to what may be gained or lost by enforcing the agreement. Like Mr. Crusty, you may deem it unnecessary. But without an effective and valid non-compete in place there is no opportunity for such analysis.

               On the flip side, if you’re bound by a non-compete and start gazing longingly across the fence at that plush green pasture that awaits you, you might want to consider just why that grass is so green. And then go show the thing to a lawyer.

               All the best.

               Bill Yanger

                A few cheers went up across the state and particularly in the Tampa Bay area today when yet another big-name film production announced it would be shooting in Clearwater in the coming months. Writer-director Laurie Collyer (Sherrybaby) will begin four weeks of filming Sunlight Jr* starring two soon to be revealed Oscar-nominated actors**. On the heals of  Dolphin Tale and Magic Mike starring Matthew McConaughey and Channing Tatum, the area is certainly on a roll.

               Florida is one of many states with a financial incentive package created to attract film and television production to the Sunshine State. Besides the stardust excitement a big-time theatrical release will generate locally and the international publicity that will necessarily flow from a successful film release, there is a far more basic incentive for the incentive, so to speak.

               Jobs.

               Really good jobs, in fact. Clean, recurring high-paying jobs. “It’s jobs, and it’s publicity,” Jennifer Parramore said in today’s St. Petersburg Times story here. “The kinds of jobs that are created with a movie are highly skilled jobs, and generally well-paid… When you have a film come in you’re both hiring local people, as well as renting hotel rooms for people you have to bring in; heads and beds, meaning the dollars spent for everybody who’s here every day,” she said.

               So, what’s not to like? Pass a bill that reasonably provides the goodies producers are looking for, make it competitive with other state’s incentives and go get the films, right?

               Well, we have a film incentive. It’s a good one but it could be better, much better. When we rarely go a day without some news event related to Governor Rick’s efforts on job creation, the Legislature must take a more aggressive stance and pass a bill offering incentives that film producers simply can’t refuse.

               Are you listening Governor Rick? If so, how about nudging your pals in in the House and Senate in the right direction. They shouldn’t need much convincing.

               All the best.

               Bill Yanger

               *Title corrected 11/1/11.

                **Now known to be Naomi Watts and Matt Dillon

               Genius aside though, their grit and determination at the brink of failure is perhaps even more impressive.

               There is the former accountant whose passion for beach culture lured him from behind a desk and into a VW micro bus selling sunglasses and t-shirts a few steps from the lapping waves. Just another Gen X’er with no ambition you say? Guess again. Today he runs perhaps the largest on-line direct retailer of boardshorts, those surfer style baggy bathing suits, in the world. Take that, Corporate America.

               What about the Tampa based television/film/digital media production company that for years, tucked in an anonymous office center, attracted talent and developed its chops and an industry rep for quality but just couldn’t break through what many considered a glass ceiling controlled by decision makers in New York and Los Angeles? Now on any given weekend, you can find their credits rolling on three or four network offerings and they are considered one of the avant garde’ of the coming wave of streaming content and 3D media. Glass ceiling? In shards.

               Of course, there is the professional boxer who spent years in rings around the world seeking respect from a press and a public who never quite accepted him as one of the sport’s elite. That is until one fateful night in Las Vegas when he wasted no time putting his world-champion arch rival and persistent nemesis to sleep with a brilliant and flashy combination of blows. Respect acknowledged. Next stop: Hollywood and a role in the Rocky saga and continuing ringside analyst gig on Showtime.

               Feel good stories all, and the shared lesson threading its way through each of these successes is actually a form of brinkmanship. Not the Kennedy v. Kruschev “my missile is bigger than your missile” kind but perhaps on a personal level a more edifying form. You see, each of these clients has stood at the precipice, that moment when they could easily (and quite literally) have thrown in the towel and shut it down.

               The beach-minded accountant? He played David against a retail Goliath, one of the world’s largest department store chains, bent on litigating him into an ugly oblivion over its particularly mean spirited practice of margin protection. The gory number crunching details of Goliath’s arguable fraud and misrepresentation, much less its clear intent to send a threatening signal to other small vendors, are less important for our purposes here than “David’s” willingness to face down the bully and not blink. Goliath succumbed. “David” now thrives.

               The Tampa production group faced a similar threat to its continued existence after a convicted felon (and competitor) thought it’d be fun and profitable to force the company into an involuntary bankruptcy. That’s the procedure available to essentially anyone willing, along with a few like-minded cohorts, to file a petition swearing that the targeted company is insolvent whether that is true or not. While there are significant penalties for misrepresenting such accusations, often by the time the dust settles and the victimized company can prove its ability to operate and pay its bills, the damage has been done. But this production company fought back, proved its viability and ultimately obtained a judgment against the convict. Talk about truth and justice prevailing.

               The professional boxer, a world champion several times over and on the eve of what would potentially be his biggest payday yet, found himself and his family threatened with financial ruin by a former promoter whose interpretation of an outdated contract seemed at odds with everyone but he and his lawyer. But that did not prevent the promoter from seeking aggressive legal action in at least two states and threatening more in a third. Instead of retreating to the ropes and covering, the boxer responded with his own crisp combination of legal maneuvers enabling him to protect his family’s financial well-being and enter that Las Vegas ring to make history.

               Litigation is most often the last option. But when it is the only option, decisive action and resolute determination are mandatory. As these clients have shown me, it’s wonderful to be smart but perhaps it’s better to be determined.

               All the best.

               Bill Yanger

               Like those Moroccan market bazaars straight out of an old French Foreign Legion movie: noisy, crowded, frenetic, a little schticky but useful, very useful. A place you can search for, find and drive a nifty bargain.

               And a place you can get fleeced without even knowing it.

               Look up “buyer beware” on Wikipedia and the Craigslist logo pops up automatically (ok, not really, but it should). I am sure there’s some questionable stuff in the posts related to other professions but the “legal services” section is flat out scary.

               Would you let a Jiffy Lube oil change jockey turn a wrench on your Porsche? Do you want that sweet dental assistant who cleans your teeth performing oral surgery on your gums? Or your kid’s high school PTA treasurer doing your company’s tax audit just because she can download an IRS form 1040 from the internet and carries a T-84 calculator in her purse? If so, good luck.

               If not, then why on earth would you ever consider placing your important legal issues, issues that may change your life and the way you are allowed to live it, in the hands of anyone other than a licensed, experienced, competent and caring member of the Florida Bar.

               Yeah, a lawyer.  What a concept.

               Sure, everyone has their favorite lawyer joke…until it’s 3a.m. and you’re blinking from that mug shot flash bulb and realize you’re life just changed…significantly. Or maybe your bank called to tell you your house is going bye bye even though you talked to the bank officer yesterday and she okay’d another 60 day extension on the mortgage payment. Perhaps, as we talked about last week, your business partner calls you from an ashram in India or worse, your husband rings from Jamaica – you can hear giggling in the background – to tell you he’s sorry he had to empty the bank account…he really does love you, but maybe a divorce is a good idea after all…hug the kids!

               Yeah, ok, lawyers cost money. So do good mechanics. So do dentists and doctors and chiropractors. Would you let a guy replace your roof unless you knew he had done it umpteen times before and that his shingles aren’t sieves? Are you going to let some hack yank out your mom’s hip and replace it based on a Craigslist ad that freely admits he isn’t a surgeon but he has all the forms and scalpels and drugs he needs to “get ‘er done”? Huh?

               Look, most attorneys cannot do without a good paralegal or legal assistant. Love ‘em! They keep our noses above the waterline and often know the mechanics of a deal as well as the lawyers. But the good ones, the trustworthy ones, aren’t hocking pseudo-legal services in cleverly worded ads claiming to save you money. Pay what you want to whom you want to pay it. It’s your dough. But if you hand over cash money to someone to give you blank legal papers or to “assist” in filling those papers out and later you find yourself in a hole deeper than the one you are in now, remember this post.

               Then call a lawyer. Most will work with you on payment and find a way to make it affordable.

               I love Craigslist. It’s an incredible resource, but be smart.

               All the best.

               Bill Yanger

Follow @yanger_law

               You and your business partner have slogged through the last 15 years showing up at 6 a.m. to turn on the lights and grease the widget machine. You, the outgoing, talkative type-A schmoozer, handle the handshaking, sales-pro, customer hand-holding issues and she, the careful, meditative soother, makes sure employees are competent, sober and satisfied with their Christmas bonus – when you are able to muster a Christmas bonus. One of you usually stays late so the other can get to a little league game or chamber of commerce dinner. More Saturdays than not are spent sitting across from each other catching up on the paperwork a bruising week has not allowed.

               There was that moment you high-fived each other when Super Gigantor Company called and not only cleaned out your existing inventory but placed an order for the next quarter that dwarfed all of your last quarter sales combined. And together you sat in white knuckle terror as that pleasant IRS auditor with a spooky twitch took copious notes while scanning your general ledgers from the three years before you had the good sense to have an accountant do your books.

               She helped handle your father’s funeral arrangements in Tiny Town, hundreds of miles away and well, you know, a place you fled from 30 years ago and never looked back. You introduced her to her second husband, your barber, and you know, nice guy and all but not as sharp as his scissors.

               In all, the little-company-that-could has chugged along, providing you both with a comfortable living and promises of continued growth and prosperity. Life is good.              

               And then one Monday morning you come in at 6 a.m. to find your barber sitting at your desk sniffling something about your partner leaving him for a Baptist preacher turned new-age Acai berry guru in some Ganges River ashram a few kilometers outside of Bangladesh. She took her yoga mat, her carcinogen-free water bottle and a bamboo incense burner but left behind everything else, including paperwork transferring her half of your company to the barber. He wants to know how much is in the company bank account.

               Oy.

               Okay, so the ashram in Bangladesh is a bit far-fetched. Or is it? Before you sprint down the hall to make sure your business partner has not bought a first-class ticket on Air India perhaps it’s time to consider this relatively simple solution:

               Buy-Sell Agreement.

               A well drafted Buy-Sell lets the owners, in a calm and thoughtful pre-need atmosphere, decide upon a mechanism by which respective interests will be valued when it comes to divvying them up. It also lets you decide who will be eligible to succeed departing owners if you determine that you do not want or cannot swing purchasing the stake yourself. It can allow majority owners to “drag along” minority owners who might otherwise unreasonably object to a reasonable sale offer or entitle minority shareholders to “tag along” at the same value per share as that of the majority. Finally, the buy-sell provisions can also save a lot of time and heartache by adequately protecting the interests of your loved ones if they are left behind to sort out the pieces after you are gone.

               This is not a difficult concept folks. Nothing too complicated, just a contract between owners that spells out in clear language who gets control of an owner’s share of a company when he or she decides to call it quits, files bankruptcy, becomes disabled, divorces, dies or, heaven forbid, simply flakes out and leaves to find inner-peace in Bangladesh.

               Or hey, maybe you’re the one thinking of heading to the ashram with the yogi guru. Have you priced first class tickets on Air India lately?  Nothing like a nifty buy-sell agreement to simplify your asset liquidation and expedite your escape to self-awareness. Talk about inner peace!

               All the best.

               Bill Yanger

               According to news reports today, the good Governor apparently doesn’t read “Consider this…”

               Yet.

               So, as a public service, we are providing him the opportunity read it again by clicking HERE, or in full, below:

               You may have heard that Gov. Rick Scott’s transition team was recently found to have brazenly trashed…or, err…mistakenly deleted a trove of public records, actually email communications.

               Oops.

               The emails likely detailed much of the team’s discussion of hiring decisions, Cabinet vetting and policy development during that crucial period between his election and unlocking the front door of the Governor’s Mansion. We’re talking 40 to 50 email accounts. That’s accounts, not individual emails. Easily thousands of pertinent, perhaps sensitive, communications governed by Florida’s public records law.

               Oh, the fun we could have ranting about conspiracy theories, pervasive hubris and a continuing pattern of disdain for the rule of law and the sun shining on their cozy cabal. “Public record laws? Pfffft!”

               But that’s not where we’re headed today. Giving the bumblers the benefit of the doubt, there are lessons in the good Governor’s stumble. I mean, think about it. If this could happen to an apparently sophisticated staff of nationally credentialed professionals who retained an assumedly seasoned and competent private vendor to handle email organization and retention, what does that say about you and your company?

               The whole “back-up” thing is important, sure. We’ve all lived through the gut wrenching realization that our computer has puked, sending us into an apoplectic daze while the IT X-Men copter in to the rescue. But there is a collateral legal issue perhaps equally important and more to the point of the stink Gov. Scott has found himself in over this issue:

               Um…email retention policies.

               Wait, wait! Don’t leave, please. I know it ain’t sexy but I assure you it is necessary. Like a Level One Trauma center, you don’t need it until you need it, and then, thank the lord, you’ve got it nearby.

               See, there is this thing called spoliation of evidence (please no emails about how to spell “spoil,” the word really is spoliation) and if you get caught doing it, well, just take out your wallet and start spilling the Benjamins. Of course, if you plan on never suing anyone, getting sued, thinking of getting sued or don’t consider there’s the slightest chance you may end up in a courtroom wondering why Juror #6 is giving you the stink eye, then read no more.

               But talk to the president of Residential Funding Corporation who jeopardized a favorable $94 million judgment a few years ago after they couldn’t produce emails requested, properly, by the other side and the judge rightly told the jury they could infer that the emails would have been adverse to Residential’s interests. Stopped yawning yet?

               Or ask UBS Warburg, LLC how a $29 million employment discrimination verdict tastes after the judge instructed the jury they could infer bad intentions when UBS cavalierly failed to produce emails that should have and could have been produced.

               Yeah, oops. Again.

               The lesson is that if you even sniff legal trouble on the horizon and hit the delete button, even accidentally, you’re as good as cooked. Like other systems you use to make sure your machines stay greased and your widgets keep flying off the loading dock, this is simply a must do. A “Duh!”

               Bragging to your golf foursome about your organized, comprehensive and monitored electronic document retention system may get you laughed off the first tee but being able to prove it to that juror with the stink eye may just buy you greens fees for life.

               Sure, you could rationalize and say if it can happen to the Governor it can happen to anyone. But don’t you want to set your bar a little higher than that?

               All the best.

               Bill Yanger

               I was running the important logistics through my mind: Starbucks tall Pike’s, black and hot, grab an aisle seat up front, finish an operating agreement so I can email it to the client after I sprint to the connecting gate in Nashville, glimpse the broad-shouldered Front Range out the porthole window as we land at Denver’s airport (which seems to be closer to Kansas than to Denver), find the rumbling swaying shuttle bus to the rental car joint…

               Oh crap.

               Rental car. I didn’t reserve a rental car. “Oy” seems like an appropriately mumbled curse.

               Free airport wi-fi gets me to the Budget website as Southwest calls for boarding. I pick a midsize, decline all the extras that scream $$$$, fumble with name and credit card info and do not think twice, not even for a nano-second, before clicking that highlighted “I agree” button, thus pledging my undying assent to fine print “terms and conditions” that took a platoon of glass tower lawyers six months and 97 revisions to draft and finalize.

               And just like that I bind myself to yet another agreement without putting pen to paper, without providing a signature, by simply clicking a little button. Welcome to contracts on the internet.

               For this trip alone I contracted to fly, drive and sleep without signing my name or even holding a pen. I’ve heard the occasional bar-stool lawyer (not attorneys, they just like to play one while slurping sticky Malibu Rum drinks in front of pretty females) from time to time pontificate about lawsuits they’ll defend pro se over on-line contracts they claim have no teeth because, “I never signed nuthin! Hah!”

               Okay, Atticus Flinch. Call me when the sheriff shows up with the moving van to execute on a judgment the Judge did sign after he explained to you that these days contracts, particularly internet contracts, need no ink. In fact, they need no signature at all. A few simple steps to substantiate understanding of the transaction and assent to its terms and “Bing!” You’re obligated.

               You’re thinking, “So what Yanger? This is news? I invested 20 minutes reading this and all you give me is a Bing?”

               Well, if you’re a small business with an e-commerce website you’d be best served making sure your site does substantiate understanding of the transaction and it does confirm assent to the terms in what the courts have uniformly called a “fair and forthright” manner. Here are five tips to help you tie up those loose ends before an order of 10,000 widgets flies off your loading dock and ends up in a container bound for Panama before you realize you got snookered by a buyer intent on paying “nuthin.”

               1. Just having an “I agree” button is not necessarily enough. At least one court, Specht v. Netscape Communs. Corp., 306 F.3d 17 (2d Cir. N.Y. 2002), has warned that “submerging” the contract terms so that they could not be seen by the consumer unless he or she scrolled down the web page beyond the initial pertinent material was not sufficient to place consumers on actual or constructive notice of those terms. Seems like common sense, right? Sure. Place the button at the point of sale.

               2. The terms and conditions of the transaction must be front and center. The buyer should be able to readily find them and read them before being asked to agree to a purchase. Burying the legal mumbo jumbo three clicks away in some dark dank corner of your website even you never visit is just asking for trouble.

               3. Make the buyer go through the exercise of scrolling through the fine print to get to the “I agree” button. Of course, our assumption is that they’re reading it but that is less important than the legal presumption that they did so.

               4. Give your customer the option to print the contract and review it. Whether they do so or not is their issue but simply offering the option will go a long way to convincing a Judge they had a fair opportunity to do so.

               5. Finally, no clicky, no ticky. Do not allow the sale to transact unless and until the buyer has acknowledged the plain language terms that substantiate they know exactly what they are doing and want to do it anyway.

               And those 10,000 widgets can now head for Panama all safe and sound. Mazel tov!

               All the best.

               Bill Yanger