Internet Defamation

By: Neil L. Wojtal 

Here is a common scenario:

There is a website that encourages anyone to post reviews of your services/products. Someone posts a negative review anonymously basically saying that your service/product stinks. Sound familiar? You want the negative review removed because you believe it may scare off potential customers. You decide to file a defamation lawsuit. Is this a good idea? Maybe not. Here are some points to consider before you file that law suit.

Since the person posting the negative review is anonymous, you would have to name the person as “John Doe” in the law suit. The idea would be to use the law suit to subpoena the records of the website to obtain the name of the anonymous poster. However, this is easier said than done.

Unfortunately, the law is stacked against you. Most sites that are designed to encourage venting, will not remove statements made from their sites. This is true even if the statements are proven to be false (the basis of a defamation lawsuit). This is where the real world and the online world diverge. If the New York Times allowed a defamatory statement to be published in their paper, they can be held liable. This is because they function as editors of all opinion pieces. The same is not true for many of these websites. The sites are designed to encourage opinions. The site owners allow anyone to say anything. They do not edit the comments. Congress recognized this fact with the passage of the Communication Decency Act in 1996. The act held that internet service providers are not responsible for the materials posted as long as they don’t act as publishers/editors of the material. This immunity has been confirmed in the case law subsequent to the passage of the Act. The protection afforded these websites will prevent them from removing the material and getting the website to provide the information requested in your subpoena will be an uphill battle.

Even if you somehow succeed in getting the website to remove the review, the fact that you filed a law suit will create more on-line records. As a result, when your company name is searched, more hits will pop up, defeating the whole purpose of the law suit. In addition, potential customers may view the law suit filing as an over-the-top reaction. Why are you reacting so forcefully to one negative review? Do you have something to hide? This is especially true if you have a number of positive reviews that counteract the negative review.

What should I do to counteract the negative review?

When it comes to fighting negative reviews, your best defense is an SEO (search engine optimization). Working with an expert such as a reputation management firm, you can have positive published material about you move to higher ranking on search engines until the negative review page is moved to the second page and beyond. Most people performing a search rarely look past the first page. I know this may not seem like the answer a lawyer would give, but sometimes your best attack is to go head to head with the websites. Note that these services can be expensive. There are several available like www.removenegativelink.com, www.removeslander.com and www.reputationarmor.com.

 The other way to get a person to take down the negative review would be to offer a settlement. Of course, you would still need to identify the person to make this happen. In the event you do negotiate a settlement that requires the person to take down the negative review, you would need a written and binding settlement agreement to make sure the person will comply.

Remember, defamation is difficult to prove. The statements made must be proven to be false. Sometimes your best defense is a non-legal solution.

U. S. Supreme Court to Rule on Constitutionality of Affordable Care Act

by Neil L. Wojtal

The Supreme Court has agreed to hear the arguments brought by 26 states questioning the right of Congress to mandate Americans to purchase health care coverage. The Court has agreed to hear oral arguments on the following issues:

1.      Two hours on the constitutionality of the requirement that virtually every American obtain health insurance by 2014.

2.      Ninety minutes on whether some or all of the overall law must fail if the mandate is struck down as unconstitutional.

3.      One hour on whether the Anti – Injunction Act bars some or all of the challenges to the insurance mandate brought by the 26 states that joined in the lawsuit. The Anti-Injunction Act prohibits a federal court from issuing an injunction against a proceeding in state court.

4.      One hour on the constitutionality of the expansion of the Medicaid program for the poor and disabled. This issue focuses on whether the states can be forced by the federal government to expand their share of Medicaid costs and administrative expenses with the risk of losing federal funding if they refuse.

The underlying issue is whether the commerce clause of the U. S. Constitution supports the right of Congress to pass the Act which includes the insurance mandate or whether the Act violates the commerce clause and is therefore unconstitutional.

The Court will probably hear oral arguments in February or March, 2012 with an opinion expected in June, 2012.

VOW to Hire Heroes Act of 2011

by Neil L. Wojtal

On November 10, 2011 the Senate passed the VOW to Hire Heroes Act. The Act is intended to help the approximately 900,000 unemployed veterans find jobs and to provide incentives to employers who hire them.

The highlights of the Act are:

1.      The Act provides the nearly 100,000 unemployed veterans of past eras and wars with up to one year of additional Montgomery GI Bill benefits to qualify for jobs in high demand sectors. It also provides disabled veterans who have exhausted their unemployment benefits with up to one year of additional VA vocational and employment benefits.

2.      The Act makes the Transition Assistance Program (TAP) mandatory for most veterans transitioning to civilian status and provides them with resources for upgrading their job hunting skills in today’s job market.

3.      Veterans will be able to begin the federal employment process by acquiring veterans’ preference status prior to service separation which will allow them to speed up the hiring process when applying for federal agency jobs.

4.      The Act will require the Department of Labor to look at how to translate military skills and training to civilian sector jobs and make it easier for veterans to get required licenses and certifications.

5.      The Act provides for the following tax credits for employers who hire veterans.

a.      $2,400 for employers who hire veterans who have been unemployed for more than four weeks but less than six months

b.      $5,600 for employers who hire veterans unemployed for more than six months.

c.       $9,600 for employers who hire veterans with service connected liabilities that have been unemployed for more than six months.

Note that Congress has ensured that the Act is completely paid for with existing revenue and does not increase the federal deficit.

Changes to Automobile Insurance Coverage as of November 1, 2011

By Neil L. Wojtal

In April, 2011 changes were passed by the Wisconsin State Legislature which returned the limits on coverage and the types of coverage to pre-2009 levels.  Here are the changes that will go into effect on November 1, 2011:

1.      Policies issued before November 1, 2011 are required to cover $50,000 per injured person, $100,000 per accident and $15,000 for property damage. As of November 1, the minimum amount of coverage required will be $25,000 per injured person, $50,000 per accident and $10,000 for property damage.

2.      Minimum protection for uninsured motorists (UM) will change from $100,000 per person and $300,000 per accident to $25,000 per person and $50,000 per accident.

3.      Underinsured Motorist (UIM) protection will no longer be mandatory under the new law. If you elect to carry this coverage, the minimum amount of coverage has been reduced from $100,000 per person and $300,000 per accident to $50,000 per person and $100,000 per accident.

4.      Note that policyholders will no longer be guaranteed the option of “stacking” coverage. Stacking allows a policyholder to stack coverage if they insure multiple vehicles. For example, if three vehicles are covered under the same policy and each has $100,000 in UM protection, each vehicle would have access to $300,000 worth of UM coverage through stacking. Stacking only applies to UM, UIM and medical payment coverage. Insurers may still permit stacking after November 1; however, they are not required to permit it.

5.      Medical payments insurance will remain optional under the new law; however, the minimum amount of protection will decrease from $10,000 to $1,000.

6.      Automobile insurance coverage will remain mandatory. All drivers in Wisconsin will be required to maintain a policy in order to drive legally.

7.      Another change allows insurers to place previously uninsured or new drivers in a high-risk category. Typically, the high-risk category requires higher premium payments.

If you have automobile coverage, especially coverage for UM, UIM and medical payments, you may want to review your coverage with your insurance agent at this time to see how the changes in the Wisconsin state laws will affect you.

ALERT: No Match Letters from SSA

By: Neil L. Wojtal

In 2007 the Social Security Administration (SSA) stopped sending no-match letters to employers. The letters had been sent out when an employee’s name or social security number (SSN) did not match the SSA’s records. As of April, 2011, SSA has started mailing the letters again.

What should an employer do if they receive a no-match letter from the SSA?

1.       Do not immediately terminate the employee. There could be a number of reasons for a no-match that have nothing to do with the validity of the SSN. These include: an input error at SSA, a reporting error by the employer or employee, hyphenated or multiple last names or an unreported name change. Termination may open an employer to discrimination claims for national origin and citizenship status by the U. S. Department of Justice Office of Special Counsel for Immigration Related Unfair Employment Practices.

2.       Give the employee written notice of the no match.

3.       Review the employee’s W-4 and I-9 with the employee. Check the SSA number verification system to make sure the information entered into the system is correct. You can access the system by going to the following SSA site:

http://www.ssa.gov/employer/ssnv.htm

4.       If you find an error, report the error to the SSA using Form W-2c.

5.       If no error is found, the employee must follow up with the SSA and the employer should follow up with the employee to see if the employee has done so.

6.       In the event the employee does not follow up and does not provide the employer with documentation or a credible explanation of good faith efforts to correct the problem, the employer could terminate the employee. Note that the employer must give the employee a reasonable amount of time to correct the problem. No guidelines are provided by the SSA, however, 120 days appears to be an acceptable period of time.

7.       In the event the employee produces a new SSN, an employer can ask the employee to fill out a new I-9 form if the employee had used their SSN as a list C document. The new I-9 form should be attached to the original I-9 form with a written explanation. This will help if the employer is audited by Immigration and Customs Enforcement (ICE).

It is important to remember that a SSN does establish a person’s authorization to work in the U. S. However, use of the no match letter to terminate employment immediately can open an employer to discrimination claims since there are mistakes in the system as stated in No. 1 above. The best way to avoid no match letters is to use the Social Security Number Verification System to verify SSNs after you hire an employee. Note that the system cannot be used to exclude an employee from employment given the inaccuracies in the system as stated in No. 1 above.

An employer can also use the E-Verify System to verify that an employee is authorized to work in the U. S. Note that E-Verify cannot be used to screen potential employees. It can only be used for current employees. The E-Verify System can be found at: http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/?vgnextoid=e94888e60a405110VgnVCM1000004718190aRCRD&vgnextchannel=e94888e60a405110VgnVCM1000004718190aRCRD

By using the systems available, and by taking the precautions stated above, an employer can reduce or avoid receiving a no match letter from the SSA and, if one is received, reduce exposure to discrimination claims by taking appropriate action.

New Visa Scam

August 18, 2011

To: All Business Associates and Friends

From: Neil L. Wojtal

RE: Visa / MasterCard FRAUD

I received this information from a business associate today. I am passing it along to alert you to this potentially costly scam.

“This is a heads up for everyone regarding the latest in Visa fraud.

Royal Bank received this communication about the newest scam.

This is happening in the Midwest right now and moving throughout the U. S. 

This one is pretty slick since they provide YOU with all the information, except the one piece they want. 

Note, the callers do not ask for your card number; they already have it. 

This information is worth reading. By understanding how the VISA & MasterCard telephone Credit Card Scam works, you'll be better prepared to protect yourself. One of our employees was called on Wednesday from 'VISA', and I was called on Thursday from 'MasterCard'. 

The scam works like this: 

Person calling says - 'This is (name), and I'm calling from the Security and Fraud Department at VISA. My Badge number is 12460, your card has been flagged for an unusual purchase pattern, and I'm calling to verify. This would be on your VISA card which was issued by (name of bank). Did you purchase an Anti-Telemarketing Device for $497.99 from a marketing company based in Arizona?' When you say 'No', the caller continues with, 'Then we will be issuing a credit to your account. This is a company we have been watching and the charges range from $297 to $497, just under

the $500 purchase pattern that flags most cards. Before your next statement, the credit will be sent to (gives you your address), is that correct?' You say 'yes'. 

The caller continues - 'I will be starting a Fraud Investigation. If you have any questions, you should call the 1- 800 number listed on the back of your card (1-800-VISA) and ask for Security. You will need to refer to this Control Number. The caller then gives you a 6 digit number. 'Do you need me to read it again?' 

Here's the IMPORTANT part on how the scam works - The caller then says, 'I need to verify you are in possession of your card'. He'll ask you to 'turn your card over and look for some numbers'. There are 7 numbers; the first 4 are part of your card number, the last 3 are the Security Numbers that verify you are the possessor of the card. These are the numbers you sometimes use to make Internet purchases to prove you have the card. The caller will ask you to read the last 3 numbers to him. After you tell the caller the 3 numbers, he'll say, 'That is correct, I just needed to verify that the card has not been lost or stolen, and that you still have your card Do you have any other questions?' 

After you say no, the caller then thanks you and states, 'Don't hesitate to call back if

you do', and hangs up. You actually say very little, and they never ask for or tell you the card number. But after we were called on Wednesday, we called back. Within 20 minutes to ask a question. Are we were glad we did! The REAL VISA Security Department told us it was a scam and in the last 15 minutes a new purchase of $497.99 was charged to our card. We made a real fraud report and closed the VISA account. VISA is reissuing us a new number. What the scammers want is the 3-digit PIN number on the back of the card. Don't give it to them. Instead, tell them you'll call

VISA or Master Card directly for verification of their conversation. 

The real VISA told us that they will never ask for anything on the card as they already know the information since they issued the card! If you give the scammers your 3 Digit PIN Number, you think you're receiving a credit; however, by the time you get your statement you'll see charges for purchases you didn't make, and by then it's almost too late and/or more difficult to actually file a fraud report. 

What makes this more remarkable is that on Thursday, I got a call from a 'Jason Richardson of MasterCard' with a word-for-word repeat of the VISA Scam. This time I didn't let him finish. I hung up! We filed a police report, as instructed by VISA. The police said they are taking several of these reports daily! They also urged us to tell everybody we know that this scam is happening. I dealt with a similar situation this morning, with the caller telling me that $3,097 had been charged to my account for

plane tickets to Spain, and so on through the above routine. 

It appears that this is a very active scam, and evidently quite successful.” 

Pass this on to all your family, friends and business associates. We must help to protect each other against these thieves.

Wisconsin Estate Planning Tips Part 3

WILLS
by Neil L. Wojtal

 A Will is a written document that sets forth your wishes concerning the distribution of your estate, who will raise your children, whether your beneficiaries will receive your assets outright or through a trust and who will serve as your personal representative to see that your wishes are carried out. Anyone who owns assets and certainly anyone with minor children should have a Will. Without one, a guardian will be appointed for your minor children and a judge will decide who will have custody of your children. If one parent survives the other this may not be an issue, however, if both parents die at the same time, this process can be time consuming, expensive and create a lot of tension in a family. For instance if both sets of grandparents are living, there could be a dispute as to who should raise the children. You and your spouse may have a brother or sister who you would prefer to raise your children. If those wishes are not set forth in a written will they will not be followed by a judge.

Further complications arise if the deceased person has children as a result of different marriages. If you want your children from a previous marriage to receive part of your estate, you would need to cover that bequest in your will. In addition, if you desire to gift certain property such as your grandmother’s wedding ring for example, that specific gift could be covered in your will. You can also make it clear in your will that certain assets are to be distributed to a favorite charity or relative. All of your specific wishes can be addressed in your will so that there is no confusion as to your wishes and you will then have appointed a personal representative selected by you to see that your wishes are carried out.

There are simple wills that are legally valid contained in the Wisconsin State Statutes in Sections 853.55 and 853.56. In fact, Chapter 853 contains a lot of information that would enable a person to create their own legally valid will. However, as with the Powers of Attorney referenced above, these wills are very simple and may not fit your individual circumstances. If that is the case, you should have a will and powers of attorney for both health care and finance and property drafted by the Zimmerman & Steber Legal Group or another qualified attorney who will customize your will and powers of attorney to meet your specific situation and address your desires.

I hope that you will seriously consider putting these important documents in place to make your wishes known to your loved ones when you are unable to speak for yourself.

 When creating a will, the following tax consequences need to be considered. Consultation with a tax expert is advised before creation of a will to get the most favorable tax treatment for your assets and heirs.

Federal –

1. Estate tax imposed on estates of $5 MIL or more ($10 MIL for a couple) in 2011 and 2012. The amount will change to $1 Million or more in 2013 unless Congress acts.

2. Inheritance tax if amount inherited is over $3.5 Million.

3. Gift Tax – 2010 and 2011 exclusion is $13,000 annually per person. You can give away $5 Million in your lifetime without having to pay a gift tax.

 State of WI –

1. Estate Tax – none in 2011 or 2012 unless the legislature acts.

2. Inheritance Tax – None if person died after 1/1/1992.

3. Gift Tax – None after 1991.

Next Posting, Trusts Part 4