Emoji and Deciphering Intent in the Digital Age

[Originally published as Emoji and Deciphering Intent in the Digitial Age, by Tanya Kiatkulpiboone and Andrea W. Paris, in Orange County Lawyer Magazine, June 2017, Vol. 59 No.6 on page 42.] An emoji known as “Face with Tears of Joy” was named the Oxford Dictionaries’ 2015 Word of the Year. See Figure 1. Caspar Grathwohl, President of Oxford Dictionaries, explained that “Emoji are becoming an increasingly rich form of communication, one that transcends linguistic borders[.]” Katie Steinmetz, Oxford’s 2015 Word of the Year Is This Emoji, Time (Nov. 16, 2015, 2:08 PM), http://time.com/4114886/oxford-word-of-the-year-2015-emoji/. Nevertheless, Oxford Dictionaries have yet to add any emoji to the dictionary, not even their Word of the Year, thereby acknowledging their expressive abilities without defining them. What Are Emoji? Emoji are small images or icons used to express emotion, ideas, or things in electronic communications. They were created in Japan in the 1990s by Shigetaka Kurita, who worked for one of Japan’s largest mobile phone operators. The name originates from the Japanese terms for picture (“e”) and written character (“moji”).  Frequently Asked Questions: Emoji and Pictographs, … Continue reading

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3 Strategies to Increase Your Business Profits

Many businesses recently reviewed their profit and loss statements and took a closer look at the business’s profitability. This analysis usually prompts the question “how to increase my business profits?” Although this question could only be answered after becoming familiar with your particular business, below are 3 areas where small changes, if done right, could increase your profitability. Decreasing Bad Debt If your business model does not require customers to pay for products or services in advance, collecting on unpaid invoices is likely something you are all too familiar with. However, collection itself comes at a cost to your business. Not being able to recoup that collection cost limits most businesses’ incentive to pursue collection, rightfully seeing it as throwing good money after bad. You can tip the collection scale in your favor. The default rule that each party bears their own attorney’s fees may be modified by statute or by contract. That means that where the law does not provide for recovery of attorney’s fees, you and your customers could mutually agree that if you and your customer find … Continue reading

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What to Do: Employee Leaves With Trade Secrets

Losing an employee, especially a key employee, is difficult for any business. You’ve invested time, know-how, and resources in your employees and they in turn are the lifeblood of your business. Unfortunately, people leave and when they leave, it is usually to work for a competitor or even to start a competing business. If that employee had access to your company’s confidential information such as customer lists, customer preferences, pricing formulas, and any other information that gives you a competitive edge, you want to make sure that the employee can’t take that valuable information to a competitor. How do you protect trade secrets from a competitor when an employee leaves? I have good news and bad news for you. The bad news: If the first time you think about protecting your company’s confidential information is after a key employee leaves, it may be too late. One of the fundamental requirements under California and Federal laws that protect trade secrets is the requirement that you made reasonable efforts to keep that information a secret. Thus, if you haven’t thought about how … Continue reading

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Do I Need a Written Contract?

You may have been in the situation where you had an agreement with someone else to do something. It may have been a family member, a friend, a customer, or a service provider. You or the other person didn’t want to go through the formal process of putting it in writing because you have a close relationship, don’t want to offend the other person, or don’t want them to think you don’t trust them. Then something goes wrong. You discuss it with the other person and now there’s a dispute as to what you both actually agreed to, or you never talked about what you two would do if x, y, z happens. Do you have a breach of contract claim? Maybe. In this scenario, your first and most difficult hurdle in prevailing in a breach of contract lawsuit is the lack of a written contract. There are multiple reasons why you would want a written contract. Here are a few: It gives clarity regarding each person’s rights and duties. The process of creating a contract forces the parties to … Continue reading

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Arbitration Agreement: Do I Want It?

You probably signed an arbitration agreement at your last doctor’s visit, when you signed up for your gym or yoga studio membership, or when you signed a listing agreement with your realtor. The ubiquity of these agreements makes it especially important for us to understand them as consumers, business owners, employers, and employees. What is an arbitration agreement? Arbitration is one of the alternative means of resolving disputes (alternative to filing a lawsuit that is). Thus, an arbitration agreement is an agreement to take disputes out of the court system to be decided by a private arbitrator (or a panel of arbitrators) usually following a different set of procedural rules than the court. People and companies choose to arbitrate for various reasons. The process is generally more streamlined and allows for a quicker resolution of disputes. It is often times cheaper than litigating in court, and the proceedings are typically not part of the public record. Lastly, the conventional wisdom is that you reduce the risk of a run-away-jury. Do you want to arbitrate? Whether agreeing to arbitrate potential disputes … Continue reading

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What to do Before You Sign a Contract

Congratulations! You made a deal, reached an agreement, or resolved a dispute and now you’re ready to sign a contract to make it all official.  If this contract is important enough to you, pause for a minute, read it carefully, and ask an attorney to review it. Why? There are 2 reasons: Whoever drafts the contract will include terms and provisions that are in their favor. They have no obligation, duty, or interest (generally) in watching out for your interest. But your lawyer does. Every time I review a contract and explain the various clauses to my clients, there are a few clauses that my clients did not understand or was against their interest and invariably had to be negotiated and revised. You may have an engineering degree from MIT and be the smartest person in the room but unless you’ve seen the same clauses day in and day out and have seen their implications in the litigation context, you may not have an accurate understanding of the contract. Contract pitfalls to look out for. This is by no means an all-inclusive list. … Continue reading

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What to Do When a Client Doesn’t Pay

This is the first post in a new series called “What to Do” where I will discuss “what to do” in various common situations that come up in small and medium sized businesses. Feel free to send me your “what to do” question. Today’s topic is what to do when a client doesn’t pay. This is a common problem that businesses big and small face and if you’re in business, you’re selling services or products in exchange with the expectation that you will be paid for those services or products. The cost to your business of unpaid invoices is not just the dollar amount on each invoice but the opportunity cost of the investment you could make in your business from that income. Additionally, it costs your business time and money to collect on unpaid balances. Thus, the cumulative effect of multiples unpaid invoices, even for small outstanding amounts, is detrimental to your business’s viability and growth. Before starting work: For the proactive business here are some tips to help you avoid or minimize the change of having a client … Continue reading

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Lease vs License Agreement

If you are opening a brick and mortar store and are about to sign your first lease on a space or if you are moving to a new space, congratulations! Committing to a location for your business for a number of years is a big commitment. Before you put your signature on that document, let’s clarify whether you are holding a lease or a license agreement and what that means. A lease gives exclusive possession in the premises. Regardless of whether the agreement is labeled a “lease” or “license agreement” the test of whether the law considers an agreement to use real estate is a license or a lease is whether the contract gives you exclusive possession of the premises “against all the world, including the owner.” If it does, then you have a lease. If the agreement only gives you the privilege to occupy the premises under the owner, in which case it is a license. An example of this would be, someone who rents a home for a 1 year term, who has the homeowner’s agreement that the … Continue reading

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Independent Contractor Misclassification

A few days ago, Uber agreed to pay up to $100 million to settle class-action lawsuits in California and Massachusetts claiming that its drivers are employees not independent contractors. Paying out $100 million is by no means the end of this story. The settlement does not affect other drivers’ ability to sue on the same grounds nor does it preclude the Labor Commissioner from determining that individual drivers are in fact employees (which it has done in at least one case). The U.S. Department of Labor also recently issued a formal interpretation of the federal Fair Labor Standards Act as it pertains to the classification of independent contractors. This advisory opinion signaled the intention of federal regulators to scrutinize independent contractor classifications and treat most workers as employees. Most companies do not have enough independent contractors to be subject to class action lawsuits worth $100 million, but how will a $1 million lawsuit or even a $100,000 lawsuit affect your business? If your company uses independent contractors, here are some steps you could take to minimize your exposure: Closely examine … Continue reading

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Breach of Contract in California

Breach of contract is likely the most common claim alleged in civil litigation cases. Contracts are the glue that holds our society together and we all enter into agreements (i.e. contracts) in one form or another on a daily basis. When the breach of that agreement results in injury, many look to the court system for a remedy. Here are a couple of the more memorable recent breach of contract cases include: Bill Cosby filed a breach of contract lawsuit against a woman who accused him of sexual misconduct, her mother, her lawyers, and the publisher of the National Enquirer. The lawsuit claims that they “disclosed information that they promised to keep secret” in return for a financial settlement. Donald Trump sued Jose Andres’s organization for breach of contract after the celebrity chef canceled his plans to open a restaurant in a Trump group building after Donald Trump’s comments on immigration. What is a contract? Simply said, “A contract is an agreement to do or not do a certain thing.” (Cal. Civ. Code § 1549.) The essential elements (parts) of a … Continue reading

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