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Intellectual Property Concerns for Businesses Using Social Media

Posted: June 24th, 2019

The internet has become a powerful presence in our lives, especially in how we use it to communicate. Social media in the form of social networking is now included in millions of Americans’ daily activities, is integral to how most of us now search for and obtain jobs, and even influences how we conduct business. Consequently, it has become commonplace for businesses to use various social media platforms to conduct polls, contests or sweepstakes among employees, interact with customers and potential customers, and spread brand awareness. Users can and do copy and paste pictures, songs, videos, documents, or even links to webpages onto a business’s profile to share via social media.

Different social medial platforms are available to help companies manage these various online activities, making them both simple and quick to organize for any company’s marketing department. Furthermore, social media marketing is an easy, cost-effective and wide-ranging way for businesses to reach new customers.

However, intentionally or unintentionally associating your business with the intellectual property of another may bring about liability for trademark, copyright, and other types of intellectual property infringement. Below is a guide to intellectual property issues businesses should consider.

What constitutes intellectual property infringement on a social media platform?

Several types of infringement can result from associating your business with the intellectual property of another. There can be trademark infringement if a company requests user-generated content from their employees which includes photos or videos and those photos or videos contain third-party trademarks in the background, on signage, or on clothing (i.e., the Nike logo). This can arguably lead to a false association claim by suggesting that the trademark owner supports the company-sponsored event. If a trademark is used in a way that tarnishes the reputation of the trademark owner (i.e., being associated with drugs, pornography and other illegal actions), there could be potential liability for trademark dilution. (This explains why clothing logos are sometimes blurred out on TV shows.)

Copyright laws can also be infringed upon if user-generated content contains copyrighted material such as art, music, photos, or quotes without proper referencing. Unless the user creates their content, obtains permission from the copyright owner, or their content is in the public domain, direct copyright infringement may result. Although a company might successfully argue that any unauthorized content was either “de minimis” (small or brief enough so as to be insignificant) or “fair use” (the promotion of freedom of expression by permitting the unlicensed use of copyright-protected works in certain circumstances), it is far easier for a company to simply prevent any claims of infringement altogether.

The right of publicity can also be violated when social media accounts tied to a particular business publish the name or likeness of a person for commercial purposes, without obtaining their permission. This can become relevant if a video or photo contest submission features individuals other than the employee who entered the contest. Depending on the nature of the social media site, an argument can be made that the submission was not being used for commercial purposes; however, a sponsor or business may have liability if the video or photo is used in an advertising campaign, on television, or in a print ad.

What can your business do to mitigate liability for intellectual property infringement?

Staying up to date on intellectual property laws is extremely important in this era of social media. Intellectual property law and social media is an intersection of emerging concern for lawmakers, lawyers, business owners, and consumers alike, because the existing laws were written prior to the mainstream use of social media. Therefore, staying abreast of all current developments is vital in making sure your business remains compliant with the law.

There are also some specific ways your business can avoid potential intellectual property liability. All online contests, sweepstakes, and polls must contain official entry rules detailing: the exact nature of the relationship between business, social media platform and entrants; eligibility for entry; the steps that need to be taken to enter; and the prizes available to be won. This creates a limited “contract” and specifies that any videos or pictures will not be used for commercial purposes. Furthermore, clear content submission guidelines should be provided which include general prohibition of using third-party materials, or depicting any activity which would violate the law, is obscene, lewd, vulgar or defamatory, involves violence, drugs or alcohol, is dangerous, is disparaging to competitors, or is in any other way inappropriate. (This list is not exhaustive; if your business is promoting a contest or sweepstakes, please contact us to discuss the official rules to avoid running afoul of gambling laws, which vary by state.)

If a business wishes to use social media submissions in an advertising campaign, the rules for entry submission should clearly state what would violate copyright and trademark laws or the company should obtain copyright ownership interest, prior permission or a perpetual license for use. The company should also examine the submitted social media content prior to any advertising, promotional or other commercial use for any images or videos that may contain third-party celebrities, famous logos, quotations not in the public domain, or anything else which might require consent and release to use.

Due to the present gray areas in intellectual property law, and with market competition requiring businesses to protect their brand image, companies should be vigilant toward any potential trademark, copyright, patent, right of publicity or privacy, or trade secrets infringements, and be careful not to infringe on the rights of others, especially on social media platforms. For your specific intellectual property concerns, please contact our office.

Long Island’s Aerospace Industry: 50 Years on from Apollo 11

Posted: June 21st, 2019

Tags: technology

By Michelle Toscano

This year marks the 50^th anniversary of NASA’s Apollo 11 moon landing, an event of particular significance for Long Islanders. Astronaut Neil Armstrong’s voice from the surface of the moon saying, “That’s one small step for man, one giant leap for mankind,” perfectly sums up the historic and extraordinary quest of the Apollo program “to boldly go where no man has gone before.” It was a quintessentially American challenge of discovery and exploration, an unparalleled feat of engineering and physics, the advent of practical computer technology and software programming…and Long Island was at the heart of it all.

In 1962, at the height of the space race and NASA’s desperate push to land Americans on the moon, Bethpage-based Grumman Aircraft Engineering Corp. won the NASA contract to design and construct the Lunar Excursion Module (LEM) for the Apollo program. The LEM was the strangely-shaped spacecraft which actually landed on the lunar surface, and from which Neil Armstrong took his first historic step. The lucrative 350 million-dollar NASA contract brought immediate and profound effects to Long Island, creating thousands of new jobs and a sense of purpose and pride to Grumman employees. Yet this wasn’t the first time Long Island was at the forefront of the aerospace industry.

Long Island has long been known for its importance in the history of aviation and flight. Called the Cradle of Aviation for its numerous air fields and aircraft production facilities, particularly during World War II, Long Island housed training centers for pilots, was the home of three major airfields – including Roosevelt Field where Charles Lindbergh departed from in his trans-Atlantic flight aboard the Spirit of St. Louis in 1927, and Curtiss Field where Amelia Earhart and other women founded the International Organization of Women Pilots in 1929 – and during the “Golden Age” of aviation (1918-1938), an astounding 20 aircraft manufacturers alone were established on Long Island. By 1945, over 100,000 people on Long Island worked in the aircraft industry and today over 240 companies on Long Island still work in the aerospace industry.

“The known limits of flight were expanded regularly in the skies over Long Island” (article here) and so it is no surprise that when Americans turned to spaceflight, the unknown frontier, it was Long Island’s aviators who led the way. The LEM, which was designed and created entirely on Long Island, was the first manned spacecraft to operate wholly in the airless vacuum of space and remains, to this day, the only crewed vehicle to land anywhere beyond Earth. It was used throughout the Apollo program and remains the jewel in Grumman’s resume.

It might not have “made the Kessel Run in less than twelve parsecs” like Han Solo’s Millennium Falcon, but it was the astronauts’ “only hope” during that fateful Apollo 13 mission, providing life support and propulsion for the crew in order to return them safely to Earth, and was the most reliable component of the entire, combined Apollo and Saturn-rocket space vehicle throughout the Apollo program. It was furthermore the only part of the spacecraft to never have a systems, engine or component problem which could not be resolved in time to prevent aborting a landing mission.

Fifty years on from Apollo 11, Long Islanders can take pride in the extraordinary achievements of their neighbors and forebearers and honor their commitment to pushing back the boundaries of the unknown as pioneers in the field of aerospace.

Quotes are attributed to Neil Armstrong, Star Trek, Cradle of Aviation Museum and Star Wars.

Michelle Toscano is a paralegal and legal researcher at CMM. She can be reached at mtoscano@cmmllp.com.

Alure Home Improvements

Posted: May 28th, 2019

On a recent Saturday afternoon, Alure Home Improvements President & CEO Sal Ferro was in a customer’s house in Lindenhurst, examining an electric panel. Alure had just completed a renovation, and the customer had taken to social media to complain about an electrical issue. While no business is immune to the occasional customer complaint, the way the business handles that complaint says everything about their approach to customer service. Ferro personally reached out to the customer and asked if he could come see the problem for himself. He took a look, called a technician to fix it that day, and now has a customer for life – one whose social media complaints turned into raves once he experienced Ferro’s integrity and personal investment in making things right.

In an industry where contractors come and go, Alure – a full-service remodeling company that has helped homeowners turn houses into dream homes since 1946 – has thrived. “We believe in a raving fan approach to customer service,” says Ferro. The approach works: powered by Alure’s philanthropic focus and emphasis on company culture, Alure’s customer-centric approach has driven the company’s success for over 70 years. CMM Managing Partner Joe Campolo recently visited Ferro, his friend and client, at Alure’s state-of-the-art showroom to discuss leadership philosophies, how to create raving fans out of clients and staff, and strategies to succeed in the often fickle Long Island market.

Alure operates three divisions – exterior, alterations, and kitchen/bath – serving Nassau and Suffolk Counties and the metropolitan area out of its showroom in East Meadow and a corporate office, warehouse and call center in Commack. Alure’s sales approach is based on education first. “By educating a client and focusing on their agenda, not our own, we’re providing a service. We take the time to understand what the client wants, we give them choices, and we design and engineer the project to meet their budget.”

The showroom is therefore an integral part of Alure’s business model, giving customers the ability to see, touch, and feel before installing at home. The displays are frequently updated to reflect current trends while also offering an array of options (“we have just as much tile as a tile store!” Ferro says), and customers can choose from a custom-designed project to Alure’s “Extreme” five-day bathroom/10-day kitchen remodel to anything in between. Ferro is also a fan of Ken Blanchard’s Raving Fans: A Revolutionary Approach to Customer Service, and has even taught seminars and training based on the book’s method of turning customer service into a competitive advantage. Not many home remodeling companies have a Customer’s Bill of Rights.

This approach explains how Alure has withstood the inevitable ups and downs of seven decades of business. “Alure is the secure, best choice for home remodeling – great quality, done timely and in budget,” Ferro says. “Our company ethics, morals, and honor are part of every job.”

As President & CEO, Ferro sets Alure’s vision, then puts the pieces in place to execute – but is clear that it’s his team who executes on that vision. He empowers his management team to make decisions, meeting with them and the entire staff regularly to help them “see the forest through the trees.” He works to set the company culture from the top. Alure’s 200-member strong team enjoys remarkable longevity – staff who happened to walk by at the showroom that day had been there for 18 years, 15 years, 12 years – and were excited to talk about it. “Sal has built an environment where people want to come to work and stand behind their work,” explains Seth Selesnow, Alure’s Director of Marketing & Public Relations, who has been with the company since 2003. “Alure understands the importance of investing in both employees and clients – our internal and external customers.”

Ferro therefore interviews every single potential hire himself after his management team has recommended a candidate. “I consider whether this person will interact well with our team,” Ferro explains. With its focus on company culture, Alure strives to show employees how important and valued they are, and small gestures of appreciation go a long way to build camaraderie. At a recent “Festive Friday” luncheon, for example, the Alure team enjoyed a company cornhole competition along with other games, catered by Felico’s sausage truck.

Philanthropy is also a major component of Alure’s DNA. Alure performed eight renovations for deserving families on the hit show “Extreme Makeover: Home Edition” and supports countless nonprofits on Long Island and in the region, including the Interfaith Nutrition Network, The Clark Gillies Foundation, Family Service League, Long Island Fight for Charity, the Farmingdale College Foundation, and many more. Last year Ferro established the Ferro Foundation, which provides college scholarships to promising students, as well as a home care program dedicated to senior citizens and veterans. “Philanthropy is critical. Even if you can’t afford to do something monetarily, you can do something with your time.”

As Alure heads into its eighth decade in business, Ferro is relentlessly focused on growing and evolving as the market changes. “The Long Island market is unique,” Ferro says. “If you’re not growing, you’re dying.” The company’s enviable organic growth through the addition of new products and services each year shows that Ferro’s vision is working and thriving on Long Island. “Long Island is an incredible place to be – there’s tremendous opportunity,” Ferro says. “It’s close to the city, we have beaches, research centers, great universities – you name it, Long Island has it. It’s a great place to do business.”

Learn more about Alure at https://www.alure.com/.

Sal Ferro shows Joe Campolo some of Alure’s options for countertops.

Alure has every option for the modern bathroom, from faucets to shower heads.

The showroom is an integral part of Alure’s business model, giving customers the ability to see, touch, and feel before installing at home.

The Alure team gets together for some fun team bonding with games like cornhole and Jenga at a recent “Festive Friday” luncheon.

You Can’t Hide Your Lying Eyes: Body Language in Negotiation

Posted: May 23rd, 2019

By: Joe Campolo, Esq. email

Tags: negotiation

Imagine you walk into a bar and see a couple that’s clearly on a first date. You can almost always tell if they’re interested in each other, even if you can’t hear the conversation. If he’s leaning forward and making eye contact, it’s probably going well, but if she’s constantly checking her watch, the feelings might not be mutual. Body language is an important way for us to pick up on emotions.

Though we like to think we base our judgments on character, rather than making assumptions on appearance, it’s simply untrue. We are hardwired to notice posture, facial expressions, tone of voice, and more, and all of it helps us form an opinion. So no matter how careful you are with your words at the negotiation table, you could be indicating dissent or frustration in how you hold your body. Consider these tips to empower you for your next negotiation.

Your eyes. The saying that you listen more to a person with your eyes than your ears is critical to a negotiation. The most important step to a successful negotiation is a party feeling that they have truly been heard, and that simply won’t happen if you are multitasking or playing with your phone during the conversation. Put your phone away and make sure that you maintain comfortable eye contact (in a non-creepy way).

Your hands. When you’re not thinking about it, you may not realize what you’re conveying to the opposing party through your hands. Drumming your fingers on the table signals that you’re impatient or even bored, and may send the message that you don’t consider the matter important or don’t value what your adversary is saying. Fidgeting, such as playing with a pen or adjusting your collar repeatedly, is considered a hallmark of nerves. That’s not something you want to convey in a negotiation. Try to still your hands so that you come across calm and collected.

Your body position. One signal you might not realize you’re sending is based on the position of your torso. You might be making eye contact and actively listening to your opponent, but if your chest is faced away, you’re sending a clear signal that you’re not invested in the conversation. Turn your body toward the conversation to convey that you’re taking the discussion seriously and value your adversary’s perspective.

Your handshake. We all know that a firm handshake makes for a good impression (and there’s a reason a weak handshake gets the “dead fish” nickname), but what else are you saying? Too firm, and you could come off as overly aggressive. Too weak, and you convey that you’re, well, weak. What you’re doing with your other hand can send signals as well. Putting your other hand on top of theirs is can be seen as a sign of dominance, while patting someone on the arm during a handshake can convey trust and good will.

There are many ways to convey emotion during a negotiation. The most important thing to keep in mind is to always be aware of what you’re conveying. Perhaps displaying a little command with a firm handshake is exactly what you need in your next negotiation—but use your body language as a tool, instead of sending a message you didn’t mean to give.

How to Deal with Threats in Negotiation

Posted: April 3rd, 2019

By: Joe Campolo, Esq. email

Published In: The Suffolk Lawyer

Tags: negotiation

Have you ever sat across from someone at the negotiation table who eventually stops bargaining and instead starts giving ultimatums?

I’m referring, of course, to the use of intimidation and fear tactics at the bargaining table: someone who threatens to stop negotiating to begin legal action or damage your character and status. How should you respond when the other side begins issuing threats?

The two most common and automatic responses are to offer a direct counterattack or to immediately concede in an effort to maintain what gains or status you already have; however, both tactics won’t work in the long run. A direct counterattack often leads to an escalation in conflict, and immediate concession shows weakness and promotes further intimidation. Instead, threats at the bargaining table should be deflected and the negotiation redirected back toward common interests and goals. Here’s a road map for the next time you find yourself face-to-face with a threat at the negotiation table.

Analyze. The first step is to realize that a threat has been made in the first place. Sometimes threats are overt and obvious, but other times they are subtle. The best way to realize what you’re dealing with is to take a step back from the situation so that you can observe it dispassionately. This might just be psychologically, or you might even want to call a break – or even just take a sip of water – to give yourself time to assess.

Empathize. Being able to empathize and understand your opponent’s perspective is critical to achieving a good result. This is especially difficult after he or she has issued a threat against you. By suppressing your automatic reaction toward either anger or fear, you are better able to empathize with your opponent and begin to question what he or she is after. As you figure that out, you will know how to respond to their threat.

Question. What does your opponent want? By focusing the conversation on what they want, and how you can get it for them through negotiation, you calm tensions, lower the hostility from the issuance of threats, and keep the conversation going. This tactic works best with a straight-shooter; someone who is not actually attempting to threaten but instead informing their opponent of strong alternatives in their arsenal.

Call the bluff. If an opponent’s threat is nothing more than intimidation or is coming from a place of weakness, it might be best to simply call attention to the threat, and therefore neutralize it. Research by Anne L. Lytle, Jeanne M. Brett, and Debra L. Shapiro in The Strategic Use of Interests, Rights, and Power to Resolve Disputes suggests that calling attention to, or labeling, a threat is the best way to get a negotiation back on track. This was the tactic recently used by Nike, when Stormy Daniels’s ex-lawyer Michael Avenatti was arrested on charges of trying to extort $25 million from the multinational footwear giant by threatening to reveal damaging claims about them.

A Strong BATNA (Best Alternative to a Negotiated Agreement). Always have a Plan B. As I have discussed previously, it is important to show up to the negotiation table with a strong alternative to your desired scenario. Preparation is key in any negotiation, especially once a threat has been issued.

Show power. Power both protects you and prompts action. Sometimes an aggressor will respond only to aggression. In such a case, the best solution would be to offer a counterattack to show strength but to then immediately shift the topic back to common interests and goals to avoid trench warfare or a stalemate.

If you focus on these steps and alternative responses, you can answer a threat at the negotiation table in a way that de-escalates the situation and shows strength at the same time.

For further reading, check out the Program on Negotiation’s blog here and look back at my prior posts about power, empathy, preparation, and BATNA.

Copyright: “Registration” vs. “Application” Finally Solved

Posted: March 19th, 2019

Published In: The Suffolk Lawyer

Tags: intellectual property, Supreme Court

A copyright gives the creator of a work an exclusive legal right to reproduce, and authorize others to reproduce, the protected work. Before a copyright owner can enforce this right with a civil lawsuit, he must register this work with the U.S. Copyright Office.[1] Surprisingly, however, ownership of a copyright exists apart from registration.[2] The creator of a work becomes the owner of the copyright of the work upon its creation. If this sounds inconsistent, then you’re right. Although someone may have the ownership rights to copyrightable work, he or she may not enforce this right until the work is “registered.” U.S. Copyright law establishes the prerequisite of “registration” prior to bringing an action for copyright. The problem over the last couple of years was that no one was entirely sure what “registration” meant.

For decades, copyright litigants were treated differently across the nation depending on which jurisdiction the litigant sued in. Some courts construed the “registration” requirement to be satisfied after the Copyright Office acted upon a copyright owner’s application, otherwise known as the “registration approach.” Other courts deemed “registration” to be satisfied after the copyright owner merely submitted an application, materials, and fees to the copyright office, otherwise known as the “application approach.”

The issue has finally been resolved in Fourth Estate Public Benefit Corporation v. Wall-Street.com, LLC.[3] The Supreme Court deemed the “registration approach” to be the correct approach based the plain language of the statute. Fourth Estate is a news organization that licensed its work to Wall-Street. Fourth Estate sued Wall-Street after Wall-Street failed to remove the Fourth Estate’s works after canceling the parties’ license agreement. Fourth Estate had filed applications to register the works with the Copyright Office; however, the Copyright Office had not acted upon the applications. The trial court dismissed the complaint stating that Fourth Estate had not satisfied the registration requirement and the appellate court affirmed the ruling. Fourth Estate appealed again to the Supreme Court.

The thorough opinion written by Justice Ginsburg on behalf of the unanimous Court decides that the correct way to construe the law is by requiring a copyright owner’s application to be acted upon by the Copyright Office before bringing a civil action for infringement. The Court comes to this conclusion by analyzing the plain language of each sentence within the statute and finally resolving the split in the lower courts. The “registration approach” will be used in every copyright infringement suit from here on out, putting an end to the inconsistency.

The takeaway: copyright owners should begin registering works that are vulnerable to infringement sooner rather than later. Although plaintiffs are entitled to damages, including those that occur prior to registration,[4] some of the harm suffered from infringement can be irreparable. Owners should make sure they are able to bring suit as soon as they are aware of infringement to best protect their works.

[1] 17 U.S.C. § 411(a)
[2] 17 U.S.C. § 408(a)
[3] No. 17-571, 2019 WL 1005829 (Sup. Ct. Mar. 4, 2019).
[4] 17 U.S.C. § 504

On Leadership and Ownership

Posted: March 15th, 2019

By: Joe Campolo, Esq. email

Published In: HIA-LI Reporter

Tags: management

This year at CMM, our theme is leadership and ownership. I recently presented “Leading Your Business the Marine Corps Way,” and I’d like to share some of these principles here. I hope they inspire you to lead effectively no matter where your personal and professional travels take you.

Create a Sense of Mission

“As America’s expeditionary force in readiness since 1775, the Marines are forward deployed to win our nation’s battles swiftly and aggressively in times of crisis.” As a Marine Corps veteran, this mission is in my blood. The challenge facing the Marine Corps is to continue to make Marines feel as if they are doing the most important job in the world. What’s your personal and company’s mission? How are you keeping yourself and your team motivated? These answers are critical to keep your team moving forward.

Attract the Best

The Marine Corps is famous for effective recruitment; fortunately, businesses of all sizes can employ these techniques. Recruitment begins with the recruiter, who symbolizes “The Few, The Proud, The Marines.” Are you using your “best and brightest” to conduct your interviews? What are your recruiters/staff saying to potential recruits? Are they engaging with the recruit, or merely reading from a resume?

Basic Training

Every year, 40,000 civilians walk through the gates of the Recruit Training Depot and emerge three months later as professionals schooled in the arts of war, embodying Marine Corps tradition. For your team to achieve this level, you must create your own boot camp. Knowing that the best trained managers and people usually win, skilled leaders embrace the Marine Corps saying that “the more you sweat in peace, the less you bleed in war.”

Tell Them They’re Elite

Starting on Day One, the Marine Corps recruit is told repeatedly that he/she will soon be a member of the greatest fighting organization on earth. There’s nothing more powerful to incentivize your team to succeed than if they believe they are part of something truly unique and special. Spend your time telling your people how special they are, and if they are not special, replace them.

Set Realistic Goals

While there are no guarantees, Marines are confident that they can achieve their assigned goals. In the business world, some managers believe that setting unreachable goals will still encourage their teams to put forth their best. But this can be destructive; if your workforce never meets its goals, each new expectation you set will be considered unreachable. Let your employees taste victory for victory to become a habit.

Instill a Fighting Culture

I served in the infantry at Camp Pendleton with the First Marine Division, Fifth Marine Regiment, the most decorated in the Marine Corps. Our mantra was “Make Peace or Die.” Every Marine is a warrior. How do your managers supervise those on the front lines of your business? Promoting a “fighting culture” encourages competition, boosts performance, and creates a common experience that inspires individuals to work as a team.

There Is No “Peacetime”

As the first to fight, Marines must prepare tirelessly every day to fight for our nation’s survival, even between conflicts. In business, it’s always go-time. You can’t wait for the next problem to reveal itself; you must constantly work to be better.

Teach Leadership (in Little Steps)

The Marine Corps firmly believes that leaders are made, not born. How can you turn unlikely employees into leaders? Recruits learn to lead by degrees, building up through a course of progressive resistance. Baby steps are key to creating leaders in business and on the battlefield. Every person in your organization should be getting trained for the next position up the rung; those who embrace this challenge are the keepers.

Encourage Peer Pressure

Marines are built through peer pressure, learning the hard way that the mistake of one person can affect an entire unit. This approach instills personal responsibility into each recruit (or employee) and helps them see their role in the bigger picture. When you manage your team, use words like “we” and “us,” and remember that when individuals succeed or fail, they rarely have acted alone. Teams should share in the praise or the blame.

Build Common Experiences

What ties together those who wear or have worn a Marine Corps uniform? Each of them has undergone the most rigorous basic training in the world. Similarly, a challenging shared experience among employees develops their respect for one another and the organization. Building common experiences and stories about your company and incorporating your employees into them builds an esprit de corps that can’t be manufactured any other way.

For further reading, check out Semper Fi by Dan Carrison and Rod Walsh.

Common Fraud Schemes Against the Elderly

Posted: March 10th, 2019

By: Martin Glass, Esq. email

Tags: elder law

Have you received phone calls lately from Lithuania? The IRS? Someone claiming that unless you share your social security number right now, the police will be there in five minutes? A couple of years ago I wrote about scams, mainly those perpetrated against seniors. I feel compelled to write again since it’s a topic that continues to have relevance and, in fact, sadly appears to be growing in both scope and audacity in response to technological advances.

Healthcare Scams

One scam that remains prevalent involves healthcare – a topic in which seniors have greater need and interest than most other segments of the population. For example, a person calls and tells you that if you have Medicare, you can get a back brace for free. Now what senior doesn’t have Medicare? And what senior doesn’t have some type of back pain?

Sometimes the caller will use the name of an actual company and sometimes just one that sounds real. The catch is that the phone number they provide is not the number for any legitimate company.

Once they’ve got you on the phone, the person will explain all the marvelous benefits of the brace. And since you have Medicare, you don’t have to pay a thing. You just have to give the person on the phone the last four digits of your social security number. You have to do what!?! If it hasn’t already, that’s when a humongous red flag should go up. No company should be asking for any part of your social security number over the phone.

If these scammers called you, that means they have not only your name and phone number, but probably also your address – all the things needed to “check your identification” when calling your bank to move money, etc. Therefore, it is very important that you do not give any part of your social security number out to someone over the phone.

Legal Scams

Another type of scam making the rounds recently involves convincing the elderly that their children or grandchildren have become caught up in the legal system. For example, someone will call an elderly person’s home claiming to be their granddaughter or grandson’s lawyer, stating that they were arrested for being in the wrong place at the wrong time, i.e., being in an Uber when the driver was also transporting an illegal substance.

The “lawyer” will convince the elderly person that they need to wire bail money to a specific (usually out-of-state) account immediately to help their grandchild. They’re asking you to do what!?! This is another red flag. No one should be asking you to wire money to them over the phone. They will usually also tell the senior not to call the police or inform anyone else in the family, allegedly to avoid shaming the grandchild and to prevent the offense from going on their “permanent record.”

Sometimes – if the senior is hard of hearing or just to alarm the senior further – they might even put a young person on the phone who pretends to be the grandchild. It is important for the senior to ask their grandchild a question only they would know the answer to. This is the easiest way to determine the truth.

What’s scarier, if unscrupulous parties successfully obtain money from a senior, they’ll likely continue to perpetuate the scam, calling back to ask the elderly person for more money for a variety of reasons; i.e., the bail was more expensive than they thought, they need money for legal fees and expenses, they want to start a lawsuit, etc.

IRS Scams

This brings me to another scam that isn’t just limited to seniors – in fact, many attorneys at our firm have gotten this call, myself included. I received the call on my home phone from someone claiming to be from the IRS. He said that I owed back taxes and would be arrested if I did not call back to settle my account. The caller ID was just some random number, so I didn’t answer. The reason that I know about it is that they left a voicemail. No, I did not call back. I simply erased the message and never heard from them again.

The fear of being arrested is pretty strong. This can be even truer for seniors who grew up in other countries. You need to assure them that the IRS does not call you on the phone and they certainly don’t arrest people for owing taxes.

Why the Elderly?

Why are seniors so frequently targeted? According the a recent FBI report, senior citizens are more likely than the general population to have assets – own a home, have excellent credit, etc. – which make them attractive to con artists; they were raised to be polite and trusting; they’re less likely to report fraud and/or don’t know who to report it to; they often make poor witnesses due to the effects of aging on memory, as well as the fact that it often takes weeks to months for them to realize they were scammed; and they are more susceptible to certain types of scams, usually those involving health, healthcare, and the wellbeing of their family (https://www.fbi.gov/scams-and-safety/common-fraud-schemes/seniors).

What Can You Do About It?

What can you do if you or a loved one falls victim to a scam? You need to inform your local authorities (police, local representative, state senator). Getting scammed is not a crime and there is no way for the authorities to bring the perpetrators to justice unless they are aware of the situation.
You also need to contact the financial institutions that you deal with. Let them know what happened. They can put an alert on your account or add additional security such as a secondary password. You should also call one of the three credit bureaus (Equifax, Experian, or TransUnion). They have an automated service that will put an alert on your account and let you know if anyone is trying to access your credit.

You can also put a withdrawal limit on yours or a loved one’s accounts, requiring another person to sign off on/or be made aware of amounts that are above a certain limit. This is a way to allow seniors to retain their dignity but prevents large sums from being withdrawn without at least a notification to a trusted family member.

How can you prevent this to begin with? That is a harder question because it deals with the nature of seniors. One habit seniors should try to break is the need to always answer the phone. I’ve found this extremely difficult for many seniors. They just have to know who’s calling them.

Getting a phone with Caller ID will help, but that doesn’t always work because of 800 numbers and cell phones. So the other thing the new phone needs is memory. Enter everyone’s phone number into the memory. That way, when the senior looks at the ID, it will say “Bill’s Cell” and not just the phone number.

The third thing the phone needs is a voicemail system that even the least tech-savvy senior can operate. Many seniors will never use a system where they have to dial into the service to retrieve their messages. My philosophy is that if someone really wants to speak to me, they’ll leave a message.
Another suggestion is to get a phone that actually speaks and says who’s calling. It’s a neat little feature (but the text to voice conversion is not always the greatest).

The biggest thing is to get your loved one to understand that if they do not know who’s calling, DON’T pick up the phone. Let it go to voicemail.
There are countless scams out there. Most of them prey on the senior’s fears, love of their children or grandchildren, or their innocence in thinking that something is free. As hard as it is to say, help your loved ones understand that the world we live in is just not that way. Keeping them informed on the ways to remain safe is the best gift you can give them.

Thank you to Michelle Toscano for her research, writing, and editing assistance.

If It Makes You Happy: Emotional Expression in Negotiation

Posted: February 8th, 2019

By: Joe Campolo, Esq. email

Think you can tell when someone is faking?

I’m referring to emotions, of course – and how well you can read a person’s expressions, or fake your own, may make or break your next negotiation.

Emotional expression (displaying emotions) is distinct from emotional experience (how you actually feel). According to some fascinating studies, that difference has important ramifications at the negotiation table. In a Stanford University study, Marwan Sinaceur and Larissa Tidens observed that negotiators facing opponents who expressed anger – even if they were not actually angry – made more concessions than when their opponents did not express anger. Even more interesting, those who expressed anger not only received more concessions, but also retained their ability to create value.

No, this finding doesn’t mean that you should angrily yell your way through negotiations. But this study suggests that whether you tend to have a poker face or wear your emotions on your sleeve, knowing when and how to display emotions can be a powerful negotiation strategy. The results also show the importance of taking a step back, rather than automatically reacting, when your adversary displays a strong emotion of any kind. He or she may be strategically displaying an emotion to elicit a response from you.

Understanding the tremendous impact of emotional expression on negotiation can also give you the tools to turn a negotiation around, as Fritz Strack, Leonard Martin, and Sabine Stepper learned in a well-known study. They found that subjects rated cartoons as funnier when they held a pen in their teeth (an action using the same muscles as smiling) than when they held a pen with their lips (which makes smiling virtually impossible). It’s no wonder that something as simple as smiling, even if you force it, is known to reduce anxiety and stress.

How does this finding translate to the negotiation table? Since it’s human nature for people to mimic one another’s facial expressions, body language, or speech, your smile can help put your adversary in a better mood. Your positive expression (even if you’re screaming inside) can help put your adversary in a more positive frame of mind – which may make him or her more likely to see things your way.

Let’s be frank: suddenly flashing a big smile in the middle of a heated negotiation won’t work (and would probably be creepy). But as suggested in a recent post by the Harvard Program on Negotiation, these lessons can help you frame your negotiation by expressing warmth and friendliness at the start, to set a positive tone. Then, as the negotiation goes on, you may display frustration or anger to tip the scales your way. When it comes to emotional expression in negotiations, honesty isn’t always the best policy.