Internet Lawyer Blog

If you use email in your day-to-day business operations the CAN-SPAM Act is a law that sets the rules for commercial email. It also establishes the requirements for commercial messages, provides recipients the right to have the sender stop emailing them, and mentions the penalties for related violations.

The CAN-SPAM Act applies to bulk email and all commercial messages, which the law defines as "any electronic mail message the primary purpose of which is the commercial advertisement or promotion of a commercial product or service," including email that promotes content on commercial websites. The law makes no exception for business-to-business email which means all email. As an example, a message to former customers announcing a new product line is required to comply with the law.

Each violation of the CAN-SPAM Act is subject to penalties of up to $16,000. Here are the CAN-SPAM Act's main requirements:

1. Do not utilize false or misleading header information. Your "From," "To," "Reply-To," and routing information - including the originating domain name and email address - should be accurate and identify the person or business who initiated the message.

2. Do not utilize deceptive subject lines. Stated otherwise, the subject line must accurately reflect the content of the message.

3. Always identify the message as an advertisement. Generally, the law provides some freedom on how to do this, but you must disclose clearly and conspicuously that your message is an advertisement.

4. Inform the recipients of your location. In sum, the email message must include your valid physical postal address. This can be your current street address, a post office box you've registered with the U.S. Postal Service, or a private mailbox you've registered with a commercial mail receiving agency established under Postal Service regulations.

5. Inform the recipients about opt-out options related to future emails. The email must include a clear and conspicuous explanation of how the recipient can opt out of getting email in the future. Make sure your spam filter doesn't block these opt-out requests.

6. Always honor opt-out requests promptly. Any opt-out mechanism you offer must be able to process opt-out requests for at least 30 days after you send your message. You must honor a recipient's opt-out request within 10 business days.

7. Always monitor what others are doing on your behalf. The law is clear that even if you hire another company to handle your email marketing, you cannot contract away your legal responsibility to comply with the law. Generally, both the company whose product is promoted and the company that actually sends the message can be legally responsible for any discrepancies.

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Our blog readers should know that there may be alternatives to chapter 7 relief. For example, debtors who are engaged in business, including corporations, partnerships, and sole proprietorships, may be able to remain in business and avoid liquidation (i.e., the sale of a debtor's nonexempt property and the distribution of the proceeds to creditors). If so, then you should consider filing a bankruptcy petition under chapter 11 of the Bankruptcy Code. In a chapter 11, a debtor may seek an adjustment of debts, either by reducing the debt or by extending the time for repayment, or may seek a more comprehensive reorganization. Also, sole proprietorships may qualify for relief under chapter 13 of the Bankruptcy Code. The sole proprietorship is the oldest, most common, and simplest form of business organization. It is a business entity owned and managed by one person. It can be organized very informally, is not subject to much federal or state regulation, and is relatively simple to manage and control. The prevalent characteristic of a sole proprietorship is that the owner is inseparable from the business. Because they are the same entity, the owner of a sole proprietorship has complete control over the business, its operations, and is financially and legally responsible for all debts and legal actions against the business. Another aspect of the "same entity" aspect is that taxes on a sole proprietorship are determined at the personal income tax rate of the owner. In other words, a sole proprietorship does not pay taxes separately from the owner.

Another alternative to filing bankruptcy may be (i) out-of-court agreements with creditors; or (ii) debt counseling services. Our readers should contact a law firm that is experienced in negotiating with creditors in reducing debts.

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It seems that more homes in the United States are facing foreclosure but it is taking lenders more time to sell or repossess the properties due to the high volume. Recent statistics provided by RealtyTrac, Inc. shows that the number of homes which received a first-time notice of default during the third quarter (July-September) increased approximately 14% when compared to the second quarter of this year.

This increase shows that lenders are becoming more aggressive against borrowers who are behind on their mortgages. This means that U.S. homeowners could now face the drastic measures of eviction or filing for bankruptcy to keep some of their properties and obtain a discharge if certain qualifications are met. Still, the banks need to clear backlogs due to certain industrywide foreclosure processing problems (e.g., sloppy mortgage paperwork comprising several shortcuts known collectively as "robo-signing").

Several of our country's largest banks took measures to temporarily ceasing all foreclosures, re-filing previously filed foreclosure cases and revisiting pending cases to prevent errors.

The foreclosure process takes a long time. Notwithstanding the fact that some lenders seem more willing to begin the foreclosure process on borrowers, they still have not put a dent in the overall length of the foreclosure process. For example, in the third quarter it took an average of 336 days, or 11.2 months, for a U.S. home to go from receiving an initial notice of default to being foreclosed by a lender.

In other states, the process took even longer. For example, in New York it took an average of 986 days (almost 3 years) for the foreclosure process to finalize in the third quarter, which is the longest stretch of any state.

Our readers should realize that they may have options to stop or prevent foreclosures under certain conditions. For an assessment of your situation, please contact us to setup an appointment.

Bankruptcy filings continue with their decrease for the first half of year 2011. However, this does not mean that our economy is getting better. In fact, the decrease in consumer bankruptcy filings, may show that unemployed individuals are too broke to file.

Based on recent statistics, it shows that bankruptcy filings fell by 8 percent in the first six months of 2011 compared to the first six months of 2010. Some experts contend that if we see an increase in bankruptcy filings, it may be a sign that our economy is improving. Approximately 15 million in America are currently unemployed and probably need to max-out their debts in order to survive the recession. See the United States Department of Labor Bureau of Labor Statistics. As such, they may be holding off on filing for bankruptcy until they secure employment. Another expert believes that people tend to file when they return to work to have a fresh start which is one of the benefits of filing for bankruptcy.

There are several different options for filing a bankruptcy petition which is an application by a debtor (or his/her creditors) to a court to declare the debtor bankrupt. This depends on the debtor's financial status and ultimate goal. For example, Chapter 7 is the liquidation chapter of the Bankruptcy Code. Chapter 7 cases are commonly referred to as "straight bankruptcy" or "liquidation" cases, and may be filed by an individual, corporation or a partnership. Under Chapter 7, a Trustee is appointed to collect and sell all nonexempt property and to use any proceeds to pay creditors. In the case of an individual, the debtor is allowed to claim certain property as exempt. Chapter 7 individuals may receive a discharge, which means that the debtor does not have to pay certain types of debts. Corporations and partnerships do not receive discharges. Consequently, any individuals legally liable for the partnership's or corporation's debts will remain liable. Therefore, individual bankruptcies may be necessary as well as the corporation or partnership bankruptcy. Part of the debtor's property may be subject to liens and mortgages that pledge the property to other creditors. In addition, the Bankruptcy Code will allow the debtor to keep certain "exempt" property; but a trustee will liquidate the debtor's remaining assets. Accordingly, potential debtors should realize that the filing of a petition under chapter 7 may result in the loss of property.

In addition, Chapter 13 is the debt repayment chapter for individuals with regular income whose debts do not exceed $1,441,875. Any individual, even if self-employed or operating an unincorporated business, is eligible for chapter 13 relief as long as the individual's unsecured debts are less than $360,475 and secured debts are less than $1,081,400. See 11 U.S.C. § 109(e). These amounts are adjusted periodically to reflect changes in the consumer price index. This chapter is not available to corporations or partnerships.

Chapter 13 generally permits individuals to keep their property by repaying creditors out of future income. Chapter 13 debtor proposes a Repayment Plan which must be approved by the Court. The amounts set forth in the Plan must be paid to the Chapter 13 Trustee who distributes the funds for a small fee. Many debts that cannot be discharged can still be paid over time in a Chapter 13 Plan. After completion of payments under the Plan, Chapter 13 Debtors receive a discharge of most debts.

Chapter 13 offers individuals a number of advantages over liquidation under chapter 7. Perhaps most significantly, chapter 13 offers individuals an opportunity to save their homes from foreclosure. By filing under this chapter, individuals can stop foreclosure proceedings and may cure delinquent mortgage payments over time. Click here for more information about bankruptcy.

Be as it may, no one can deny the fact that the global economy, including, but not limited to, America's current financial status is in dire straits. Therefore, it is important to learn the ways to avoid a personal financial crisis before it happens. Please contact us for a free consultation.

Click here if you want to research bankruptcy statistics by type (i.e., chapter of the bankruptcy code) and the rate per 1,000 population.

In light of the circumstances, numerous states have enacted "cyberstalking" or "cyberharassment" laws or currently possess laws that specifically include electronic forms of communication within more traditional stalking or harassment laws. In addition, many states have enacted "cyberbullying" laws in reaction to issues related to protecting minors from online bullying or harassment.

Cyberstalking constitutes use of the world-wide-web (i.e., the Internet), electronic mail or other electronic communications to stalk. It generally refers to a pattern of threatening or malicious behaviors. It may be considered the most dangerous of the three types of Internet harassment, based on a posing credible threat of harm. Penalties range from misdemeanor to felony. See Cal. Civil Code § 1708.7, Cal. Penal Code § 646.9.

Cyberharassment is different from cyberstalking since it may not involve a credible threat. It usually pertains to threatening or harassing email messages, instant messages, or to blog entries or websites dedicated solely to tormenting a person. Some state legislatures have dealt with this issue by inserting provisions which address electronic communications in general harassment statutes, while others have created stand-alone cyberharassment statutes. See Cal. Penal Code §§ 422, 653.2, and 653m.

However, cyberbullying and cyberharassment are used interchangeably sometimes. Generally, cyberbullying is used for electronic harassment or bullying amongst minors in the context of schools. Recent legislation seems to show a trend of placing the burden of enforcement of such policies on school districts. Hence, the laws establish the infrastructure for schools to handle this issue by amending pre-existing school anti-bullying policies to include cyberbullying or electronic harassment among children in educational environments. Most state laws enforce sanctions for cyberbullying on school property, school buses, or school functions. See Cal. Ed. Code §§ 32261, 32265, 32270, and 48900.