Click-Throughs and Opt-Outs: Information About Contracting Online
Most of us are familiar with the idea of a contract; we make an agreement with a person to do something, i.e. perform work or buy a car. Sometimes this agreement is sealed with a handshake; other times the agreement is reduced to writing and signed by the parties.
But what about contracts online? When navigating through Web sites, you very rarely meet the person or company you are dealing with and certainly signatures are often not exchanged.
This does not mean, however, that contracts are not formed all the time by your online activities. When signing up for a Web site, very often you will be presented with a big long text box entitled “Licensing Agreement” or “Terms and Conditions. If printed out, it would likely be dozens of pages and yet you are expected to read through all of that before you can buy a Pez dispenser or sign up for a new Web site.
Though most people do not read through these forms, they can, in fact, be legally binding documents. If at the bottom of the form you have to select a box, entitled, for example, “Accept Licensing Agreement” and then click a “Next” button, this is referred to as a click-through.
Under federal and state law, this can be interpreted as the same as a signature on a contract, creating a legally binding agreement. For this reason, it is important to read through the main points of the agreement, particularly if it involves a major transaction.
Another system commonly used online is an “opt-out.” This means that the box for acceptance is already selected and that you have to unclick the button to show you are not agreeing. Some laws do limit when this is method is appropriate.
However, you often see click-throughs when downloading software to install additional add-ons and tools – and potentially spyware or malicious programs – and also when signing up for mailing lists or listservs.
Though the degree to which we now live online makes it easy to be cavalier about our activities and acceptance of these licensing agreements or terms and conditions, construes should be aware. Recent changes with the Facebook Web site, where the popular social networking company attempted to institute changes allowing them to use any photo posted on the Web site, caused a backlash from its users, which required them to change its policies. This would not have happened if some people were not reading the fine print. Of course, these issues are even more important in e-commerce and business to business transactions.
WSJ Law Blog – FCPA Roundup
A few months back, we wrote a post about the Foreign Corrupt Practices Act (FCPA). This Federal law is important for companies operating abroad. The FCPA makes it a criminal offense for a US company or individual to bribe a foreign official any where in the world. This extraterritoriality is relatively rare in US statute.
Now, the Wall Street Journal’s Law Blog has published a post entitled FCPA Roundup: Swiss Bank Accounts, Ferraris and “Foreign Officials. It includes news about FCPA prosecutions involving a Japanese company accused of bribery in Nigeria and a California company accused of bribing Mexican officials with a Ferrari (and other gifts).
Hello to Readers of The Liberal OC
Hi LibOC Readers and Others,
Thanks for checking out my law firm site. I’m Todd Gallinger, an attorney and consultant from Irvine, CA. Many of you may recognize my name from my run for Irvine City Council in 2008. I didn’t beat the incumbents, but I did get almost 22,500 votes.
For work, I mainly serve small and new businesses, owners, executives, and professionals with business transactions, litigation, immigration, and personal estate planning. Most of my clients are technology or service companies. I also help professions (like doctors, attorneys or accountants) with implementing technology, improving workflow, and strengthening communications.
I just so happen to be an American Muslim (a fact which became an issue in my campaign) and do represent a lot of Muslim non-profit organizations and community leaders (of course I also represent non-Muslim religious groups and non-profits too). A few years back I filed two class action with the ACLU while representing the Council on American Islamic Relations – California.
I’m currently president of the CAIR-CA PAC, the largest PAC representing the American Muslim community; I also host a show OneLegacyRadio.com called Consensus, which covers National and International Politics from a Unique American Muslim Perspective; I’m also on the board of the New Horizons School Irvine; I also worked with some other American Muslims in the business sector to start AML Management, where we are currently holding a Business Plan Competition with two $5,000 prizes.
On the web, I’m most places. You can follow me on Twitter, friend me on Facebook, connect to me on LinkedIn, read my blog, etc., etc.
Please let me know if you have any questions, or if you’d like to ask about my services.
Thanks,
Todd
FAQs about Ownership of Medical Corporations
Who in California can own a medical corporation?
As specified in the California Business and Professional Code, the following people may be the shareholders, officers, directors, or professional employees of a medical corporation:
- Licensed doctors of podiatric medicine;
- Licensed psychologists;
- Registered nurses;
- Licensed optometrists;
- Licensed marriage and family therapists;
- Licensed clinical social workers;
- Licensed physician assistants;
- Licensed chiropractors;
- Licensed acupuncturists;
- Naturopathic doctors.
The California Medical Board and California Codes state that an unlicensed person cannot own any shares of a medical corporation. At least 51% of the shares must be owned by a licensed physician and surgeon. The remaining 49% can be owned by the individuals specified above.
What is a Medical Practice?
Since no corporation but a Medical or Professional Corporation can run a medical practice, it is important to understand the definition and scope of that under the law. According to the California Business and Professional Code, section 2051, the practice of medicine is defined as the:
“use of drugs or devices in or upon human beings and to sever or penetrate the tissues of human beings and to use any and all methods in the treatment of diseases, injuries, deformities, and other physical and mental conditions.”
This is further supplemented by the various sections of the Business and Professions Code, and other California Laws, which delineate the scope of practice for each of the licensees listed above.
Are there any Federal Restrictions? What is the Stark Law?
What is often called the Stark law is comprised of three separate provisions that regulate physician self-referral to Medicare and Medicaid patients because of the possible conflict of interest. This often limits physicians’ ownership of health care companies, because they cannot refer from their own medical practice.
For example, Physicians may not refer patients to any medical facilities in which they have financial interest including ownership, investment, and a structured compensation arrangement. A physician’s self-referral could possibly encourage over-utilization of services which would increase health care costs. Self-referral could also cause a captive referral system which would limit competition from other providers.
Physicians are also banned from referring patients to immediate family members who include spouses, parents, grandparents, children, grandchildren, brothers, sisters, mothers-in-law, fathers-in-law, brothers-in-law, sisters-in-law, daughters-in-law, sons-in-law, and also adopted and step members of their families. Referring to an immediate family member would also be another conflict of interest. There is no stated regulation in the Stark law against referring to more distant relatives. The physician referring to the distant relative however, still may not have any financial interest or gain from the referral.
What is the History of the Stark Law?
- Stark I- Congress included provisions in the Omnibus Budget Act of 1989 (OBRA 1989) which barred self-referrals for clinical laboratory services under the Medicare program effective January 1, 1992. This provision also included a series of exceptions to the ban in order to accommodate legitimate business arrangements.
- Stark II- (OBRA 1993) expanded restriction to a range of additional health services and applied it to Medicare and Medicaid. This provision also contained some clarifications and modifications to the original law. The Social Security Amendments of 1994 also contained minor technical corrections to these provisions.
- Phase III- The final rule was published on September 5, 2007 and it became effective December 4, 2007. This contains two major changes which are the repeal of the prohibitions based on compensation arrangements and the reduction in the list of services subject to the ban.
Todd Gallinger Teaching Online CLE for CA Bar: “Avoiding Cultural Missteps”
On January 13, 2011 at 11 am PST, Todd Gallinger will present, with other, an online MCLE program for the State Bar of California entitled “Avoiding Cultural Missteps”. California attorneys participating, either live or via later download or stream, will be eligible for credits towards their Elimination of Bias in Legal Profession requirements.
This program will address avoiding cultural missteps when working with clients and lawyers in the Middle East, Asia, including China and India, and Europe. The speakers will address their experiences and describe how cross-cultural differences affect the practice of law and business relationships. Drawing on their experiences in international trade, in a Fortune 500 company, and with Sharia law, the speakers will illustrate some of the cultural differences practitioners may come across when working with international clients, partners, and opposing counsel. From this, participants will learn to recognize some potential cultural pitfalls. Todd Gallinger will talk about his experience working with the Middle East.
The Foreign Corrupt Practices Act, A Survey For US Businesses Doing Business Abroad
In an increasingly interconnected society, business dealings between United States companies and the global economic world have come a long way. But with such advances comes a need to keep oneself in check, and make sure that any and all business transactions are in accordance with the law. Specifically, it is important to familiarize ourselves with the Foreign Corrupt Practices Act of 1977, or “FCPA.”
The FCPA “prohibits US companies and companies whose securities are traded on US stock exchanges from paying or offering anything of value to foreign officials for the purpose of obtaining or retaining business.’ The FCPA applies to a broad scope of people, including the individual, firm, officer, director, employee, agent of the firm, and even any stockholder acting on behalf of the firm. The definition of “foreign official” is expansive as well, as it is not restricted to government representatives, but also includes any employees of foreign departments, agencies, or instrumentalities of the government.
Nontraditional investment ventures have further expanded the influence that foreign officials can exert on United States finances. Opportunities like the Sovereign Wealth Fund can directly involve foreign officials within the United States, thus heightening the potential for bribery to occur. What’s more – given the fact that foreign governments have also made investments in a wide scope of companies and organizations, this widens the sphere of influence that foreign officials hold, in that such companies have then become dubbed as instrumentalities of foreign government, and thus subject to FCPA regulations.
The cost of violating the FCPA is high, as for corporations who conduct bribes, the fine is $2 million, and the fine for individual officers and shareholders is $100,000 with imprisonment for up to five years. With the penalties so high, it is imperative that United States companies act within the bounds of the FCPA and refrain from illegal bribes so as to protect not only themselves, but the integrity and ethics of the global economy.
Two Gallinger Law Pro-Bono Clients Receive Non-Profit Approval
Gallinger Law is pleased to announce that two of its pro-bono clients, the California Latino Psychological Association and Get Inspired!, were approved by the Internal Revenue Service as 501(c)(3) non-profit organizations. This means that these organizations will be tax-exempt and that donors will be able to deduct their contributions to them. Gallinger Law accepted representation of both of these clients as part of our continuing work with the Public Law Center.
The California Latino Psychological Association (CLPA) is dedicated to advocating and serving the mental health needs of the Latino community. CLPA is invested in the clinical, research and academic issues related to Latino Psychology. The CLPA advocates for social justice on issues affecting the mental health of Latino communities; and the quality of education, training and work environments of Latino Psychologists.
Get Inspired! believes that the loss of arts programs in our schools has created a need for curricula that encourage imaginative thinking and that allows students to explore their creative talents.It runs programs designed to inspire creativity while allowing children to discover the world of science.
DOJ Indicts Six for Human Trafficking in Gallinger Law Pro-Bono Case
Working in conjunction with the Public Law Center and several other law firms, Gallinger Law represented exploited Thai farm workers before the U.S. Citizenship and Immigration Services. Gallinger Law was successful in obtaining T-Visas for their clients, who agreed to work with the Department of Justice in prosecuting the human traffickers who brought them to the country under false pretenses.
Gallinger Law’s clients cooperation, and that of other victims, recently resulted in a federal indictment issued by a grand jury in Honolulu. The indictment charges six individuals with conspiracy to commit forced labor and document servitude, relating to approximately 400 Thai workers who were abused. If convicted, the individuals face up to 70 years in federal prison.
More information about the indictment can be found here.
Todd Gallinger Featured Speaker at Rebuild Afghanistan Summit
On Sunday November 21, 2010 Todd Gallinger, the founder and principal attorney of Gallinger Law, was a featured speaker at the Rebuild Afghanistan Summit 2010. The Southern California Summit took place on the campus of the University of California at Los Angeles and was attended by hundreds of students, business leaders, and community activists. The purpose of the Rebuild Afghanistan Summit is to mobilize local community to get involved with organization and businesses working in Afghanistan and to provide a platform to help those organizations expand their projects through learning and knowledge.
Todd Gallinger’s was part of a panel presentation on Engaging Media and Government Officials to Expand Projects in Afghanistan. His presentation focused on how to directly engage with legislative officers to advocate or lobby for a specific cause. It covered the basics of how to set up a visit in a district office, or D.C. office, of congresspeople or senators, what to prepare for the meetings, and the best ways to conduct one’s self during these meetings. For more information on the presentation, or government advocacy generally, please contact Todd Gallinger directly.
Gallinger Law Launches VisaInvestor.com
Gallinger Law is proud to announce the launch of VisaInvestor.com,the provider of fully integrated services to international investors and business people looking to relocate to the U.S. Though VisaInvestor.com, Gallinger Law can provide the legal and business support services necessary to make a transition to the US successful. VisaInvestor.com, through affiliates, can also assist clients in locating an appropriate business to purchase and/or placing an investment in a regional service center, if appropriate.
VisaInvestor.com is currently looking for international and U.S.-based affiliates, to team up in providing and marketing services to international investors. If you are a professional with strong connections to international businesses, this is a great opportunity to reach new clients and provide additional services to your existing clients. To take advantage, please contact us.
