Does the Cooling Off Rule apply to photographers?

Topic: Contracts, General Legal
Time Investment: 40 Minutes
Suggested Product: Cancellation Contract

 

If you buy something at a store and later change your mind, you may not be able to return the merchandise. But if you buy an item in your home or at a location that is not the seller’s permanent place of business, you may have the option.

The Federal Trade Commission’s (FTC’s) Cooling-Off Rule gives you three days to cancel purchases of $130* or more. Under the Cooling-Off Rule, your right to cancel for a full refund extends until midnight of the third business day after the sale.

The Cooling-Off Rule applies to sales at the buyer’s home, workplace or dormitory, or at facilities rented by the seller on a temporary or short-term basis, such as hotel or motel rooms, convention centers, fairgrounds and restaurants. The Cooling-Off Rule applies even when you invite the salesperson to make a presentation in your home.

Under the Cooling-Off Rule, the salesperson must tell you about your cancellation rights at the time of sale. The salesperson also must give you two copies of a cancellation form (one to keep and one to send) and a copy of your contract or receipt. The contract or receipt should be dated, show the name and address of the seller, and explain your right to cancel. The contract or receipt must be in the same language that’s used in the sales presentation.

 

Some Exceptions

Some types of sales cannot be canceled even if they do occur in locations normally covered by the Rule.

The Cooling-Off Rule does not cover sales that:

• are under $130*;
• are for goods or services not primarily intended for personal, family or household purposes. (The Rule applies to courses of instruction or training.);
• are made entirely by mail or telephone;
• are the result of prior negotiations at the seller’s permanent business location where the goods are sold regularly;
• are needed to meet an emergency
• are made as part of your request for the seller to do repairs or maintenance on your personal property (purchases made beyond the maintenance or repair request are covered).

Also exempt from the Cooling-Off Rule are sales that involve:

• real estate, insurance, or securities;
• automobiles, vans, trucks, or other motor vehicles sold at temporary locations, provided the seller has at least one permanent place of business;
• arts or crafts sold at fairs or locations such as shopping malls, civic centers, and schools.

*Previously $25, now $130 as of January 2015

Information above directly from the FTC

Read more from the FTC  on their changes here

 

 You can listen to the entire discussion below or read this quick summary of the Federal Law:

Cooling Off Rule Does Not Apply (meaning client can’t cancel)

• Client comes to your studio
• Purchases less than $130*
• In Person Sales (IPS) session where prior negotiations occurred – it can be strongly argued that the IPS session is a product of the original agreement that happened outside the cooling off period (assuming you didn’t book and shoot within the timeframe outlined).  Circumstances will determine if the Cooling Off Rule applies.
• Mail (including email) or telephone communications created contractual relationship

Cooling Off Rule Applies

Client signs contract at an expo or fair and changes mind within the cooling off period. The rule applies and allows client to cancel, based on the circumstances and no existing exemption.

It is important to note that contract language cannot vitiate and preempt damages in these cases.  In accordance with the Virginia Consumer Protection Act (the state act we examine for this discussion), cannot be contracted around.  The reason for this Act is to protect consumers from unscrupulous trade practices.  Any contract with language to “go around” the Act would be such an unscrupulous trade practice, as defined by the Act. So don’t try to contract out of it, you can’t!

 

Need more help understanding this?

Check out this chat with business litigator, Andrew Connors, as we parse this out for you!

*Note: The limit has changed to $130 from $25 for purchases as of January 2015 – notes have been made in an attempt to amend the transcript but no changes have been made to this pre-recorded audio. You can read more from the FTC  on their changes here.

 

 

Video Transcript

Rachel: Hello guys, Rachel Brenke from TheLawTog here, and today I’m so excited that’s because I have Andrew Connors who actually we graduated law school a couple of years apart from the same school, and he’s also my trademark attorney. He focuses on intellectual property and business litigation. And so, we’re going to talk a little bit with Andrew today about one of the big questions I always get from you guys, and it’s about something called “The Cooling Off Rule”. If you don’t know much about it, I think Andrew is going to give us a little insight into it, but I really wanted to get a varying perspective of…as of insight into how this going to apply in the course of photography business to make sure that you guys are doing the right thing, because you know…you’re coming to me, I talked about contracts a lot, but we want to make sure that the sale can follow through and sometimes they can unravel end up days following a sale, because there’s something called “The cooling off rule”. So, Andrew, thank you so much for being here to talk to us about this and I guess, just go ahead and we’ll let you then kick it off with some of the information you wanted to provide for them.

Andrew: Well, thank you, Rachel. I really appreciate you’re having me and I hope I give your audience some useful information. So, I’m going to focus our discussion today on two laws that I’m familiar with. So, there’s a “cooling off rule” promulgated by the FTC, the Federal Trade Commission under Federal Consumer Protection Act Laws, that’s going to apply to everybody no matter what state or territory you’re in, as long as you’re in United States. And we’ll also discuss, so that people will have some context, since I’m in Virginia. There is something in Virginia called “The Virginia Home Sales Solicitation Act” which is a bit of a corollary to the FTC rule, and I suspect that many states would have something similar. So, just for the audience to keep in mind that you have both federal and state compliance and they might be different. I guess, maybe to lay the groundwork for your audience, Rachel, generally speaking, we were talking about…we were just talking about this offline before we started the interview. There are a door-to-door sales rules, they basically are meant to govern door-to-door salesmen like transaction firms, I think of a person selling knives door-to-door, or something like that.

Rachel: Always think of the ‘vacuum cleaner’ people… [laughing]

Andrew: Yeah. Vacuum cleaners are perfect example. I think it’s pretty clear from my reading that that’s what legislatures and congress had in mind…

Rachel: I agree

Andrew: …whenever they pass these things. However, of course, as we know, as Rachel and I know as lawyers, that doesn’t mean that’s how it will be enforced, because the law can be written in a different way. For those that care… I’ll mention a couple of boring legal statutes…

Rachel: [chuckles]

Andrew: …so that people know what we’re talking about, but it’s good, so you can look this up later. So, the federal rule is actually a regulation. Regulation means something that was passed by a federal agency. So, it’s sort of quasi-law, meaning it has to have some authority. Now the Federal Trade Commission has lot of authority to regulate consumer protection things. And they’re regulating what they believe to be deceptive or misleading trade practice.

Rachel: And actually, let me insert there, that’s really important you brought that up, because it’s not just covering this “cooling off rule” that we’re going to talk about which basically allows for a consumer to cancel a purchase or contract within a certain amount of time period. But the FTC also governs the advertising rules that you guys need to be aware of online, offline, because the consumer protection that Andrew just said. So, they’re not just the governing body for what we’re talking about. They are overarching to protect everyone out there, consumers out there for unfair practices.

Andrew: I appreciate that, Rachel, because that’s a really good point. One thing I’ve commonly talked about, I’ll just throw it out there so that people are aware, but as an example…other things that might regulate that might be relevant to people in your life, which are things like endorsements…

Rachel: Yes

Andrew: …products. Things like, I’ve dealt with that a lot too. So, you’re right, it’s very overreaching and there are a lot of regulations both federal and state concerning what it means to engage in misrepresentation or deceptive trade practice that might be very well-intentioned, but sure enough, you might fall under one of these laws.

Rachel: And before we go forward on that, I just want to touch on the endorsement thing. I go into this a lot more in my marketing course, obviously I have a legal section for you guys. It wouldn’t be me if I didn’t include that, but when we talked about endorsements, we use testimonials and advertising to gain new clients, and there’s issues when…and this can happen when you guys have like senior reps or client referral programs that if you’re paying someone or providing them something in exchange for that endorsement or testimonial, that has to be disclosed to the people that are seeing or reading or receiving the testimonial, because they need to be on notice and let them know that it might tank their…if the testimonial is true, because you’re…if you’re going to be told that you’re given a twenty-five dollar gift card to Starbucks for a testimonial, you’re probably going to be more likely to give a really glowing testimonial. But the whole point in testimonials in trying to get new clients is they need to be accurate and truthful, just like we’ve talked about it a minute ago. We don’t want this to be misleading practices. So, that’s just a little tip I want to throw there for you guys, if you have more information on that, it’s outside the scope that we’re going to bring. MarketingMadness has that and there’s also some articles up on the blog. So, Andrew…sorry about that. [chuckles]

Andrew: Yes. No, no. As I suspected, something just, you know…I suspected something I’ll blog about that too.

Rachel: Oh yes, I’m glad you brought that up. I’m going to link Andrew’s information for you guys, and he is the person that I go to if I have any questions as far as really in depth intellectual property trademarks, like I said, he’s my trademark lawyer, he did all the trademarks for me. His blog is a great resource as well.

Andrew: Oh, thank you. But I suppose we should shift over back to door-to-door sales, Rachel.

Rachel: Yeah, sorry about that [chuckles]

Andrew: Oh, no. It’s alright. So, I was mentioning code section. So, the Federal Code Section is a…like I said, so regulation meaning that, if you really wanted to get into it, there might be some legal argument out there that this is not a law of regulation, but let’s assume it is as it probably is. And, that’s at…it’s title sixteen of the Code of the Federal Regulation section four twenty nine, and that defines what type of sales they’re going to deal in. And I’m not going to read out…the text is long and boring and you hire people like me to make it feel a lot easier.

Rachel:[chuckles]

Andrew:But basically, so it’s regulating a sale, lease or rental of consumer goods or services, there’s some key criteria there. So, you see immediately, any sale consumer goods or services, probably in most cases photographers are going to be dealing in consumer goods, I think. Right. If it’s family photos and that sort of thing.

Rachel: Right.

Andrew: Now, I’d say out of the gate, if it’s somebody who hires you to make…to do pictures for their business, then it’s probably not a consumer good. And so you get out of that boat. Consumer goods are generally things for family or household purposes, not for business purposes. So, that’s sort of one key point. It’s got to be over 25 dollars (recently changed to $130) I presume, most photographers…

Rachel: Majority, yes.

Andrew: Something over 25 dollars (Recently changed to $130). So that’s probably not going to be the way out. Could be many contracts or one contract. And here is the key, the seller or his representative personally solicits the sale including those in response to or following an invitation by the buyer, and the buyer’s agreement or offer to purchase is made, and a place other that the place of the business or the sell offer. Now, we’ll get more into it, but if you don’t have a fixed location and Rachel advised me that…and I know that’s too awkward for photographers. It is very common for photographers work at their home and many businesses work out of their home, so that is going to put more of into the purview of this sort of act. You’re going to be regulated. Now, there is a list of exceptions, and there is a long list, I want to focus in on a couple that I think will give photographers some context. And generally speaking, my opinion is that photographers can probably generally be exempt from this, and the reason why you want to be exempt from this is that…so you’ll have…the whole point is, if you falling under this, the Federal Act requires you to do two things: It requires you to notify people the right to cancellation. You give them a cancellation form, and they have three days to cancel it. I think there is some, basically it’s tricky, because if they purchase the product from you a tangible good, they have to return it, the problem is that you’re not…photographers do not, probably produce a tangible good, well at least not at first…you know, eventually the photographs come later, so you probably, if you are under this, you’re going to be at a hard place when they say ‘give me my money back’. So, that’s a big thing. But the exemptions I think are important. So, there are a few different exemptions. The first one that is important to know is if you have prior negotiations in a course of a visit by the buyer to a retail business establishment, having a fixed permanent location where the goods or services are offered. So, obviously that’s not going to apply to everyone, but if you have a fixed location and somebody visits it, and then you go their home, you ought to be exempt under that part one.

Rachel: Well, let me ask you this then, and we’ve kind of mentioned this. Some photographers, their regular is not a retail place of business, but they always meet their clients at Starbucks. I mean, is that helpful in any form or fashion if they end up doing it there. I mean, it may not be a retail business…

Andrew: That’s a good point, Rachel. I always qualify this with, all these things I’m saying are obviously in generality, so it’s always a case-by-case thing, there is a lot of case law on this subject, I’m sure, especially at the federal level. So, you know, ultimately I would love to have a case that says what is retail business establishment thing.

Rachel: Great.

Andrew: But my impression is that retail business establishment means a fixed traditional…

Rachel: Agreed.

Andrew: Commercially zoned…right – a location, not a house. That’s the reason why you’re saying that. Otherwise, you wouldn’t say that term at the beginning, right? So, yeah. I think so. So, I think… Now, when we get, I’ll keep it split up, but if you get into something like Virginia’s law. Virginia’s law is actually much more protective of the business person. So, Virginia’s law doesn’t make that distinction. Virginia’s law just says, if you engage in any negotiation between or before services are provided at the home, then you’re exempt, which is great.

Rachel: See, in that right there is why I from the very beginning, and this is something that Andrew and I should said at the beginning. Well, lawyers were taught to be able to argue on either side of it. I mean we try to read the law as much as possible; the case law is out there. But for me, I really think based on what Andrew just said, and as Virginia’s state law, every state law may be, a little different, but for us, we’re not these door-to-door salesmen. We’re not just showing up in jumping into somebody’s house in selling them pictures. We have done previous transaction and negotiations with the people. They had to inquire, they had to book, we had to have session, we had to set up the time, and so I feel like…and I don’t…Andrew, I believe that…hopefully that you’ll agree when I say this, is that I don’t think they were…that this …like we said at the very beginning. This was to protect consumers against like the door-to-door vacuum type salesmen. No offense to any door-to-door salesmen! But that’s what this was really to protect. And if you have engaged in this negotiation discussions with clients and met with them previously and talked about potential products, you’re really backing off of that high pressure sales session. They will have had opportunities to think on this…the buyer has…has had opportunities to think and discuss. They weren’t blindsided by your sales at that point.

Andrew: I agree, Rachel. And I’ll mention, this is a good segue into one of the other exemptions I wanted to highlight. This is again, this is federal law. This is something everybody else to comply with. So this is part A4, says you’re exempt if you conducted and consummated entirely by mail or telephone without any other contact between the buyer and the seller, or it’s representative prior to delivery of the goods or that stricture. their restriction. So, that means you have a telephone or mail based, I mean…who is going to do it by mail? So, let’s just say…

Rachel: Hahaa…carrier pigeon.

Andrew: And I think mail probably…I think we can fairly construe mail to include e-mail.

Rachel: Agreed.

Andrew: Since you have conversations by those methods of communication. Okay? So, importantly those method of communication are not face-to-face communication. And I think that’s done purposely based on what Rachel described as the intent of law. So, if you do those things and you enter into a contract, and now when I say contract, I’m sure Rachel has told you a lot about this.

Rachel: [chuckles]

Andrew: …that’s a big subject for another day.

Rachel: my reputation goes before me. [chuckles]

Andrew: Right. There’s a lot of ways to enter into a contract, but importantly, right, does not necessarily mean a written contract.

Rachel: Right.

Andrew: Obviously, we might not have something in writing at that stage. That’s okay, I think, you’re going to have an agreement that’s enforceable in court without having something to signed in, writing. A lot of discussion there is beyond the scope we’re talking about. But so, going back to either mail or telephone…you do that and you have an understanding. So, basically it doesn’t even say you have a contract. It says, basically that the sale is conducted and consummated, so you have some general agreement about what’s going to occur and then you go provide the services, you’re exempt.

Rachel: And I believe that a reasonable person is going to understand from your discussions and bookings, they’re going to…a reasonable person’s going to understand and expect to receive and purchase images in the end.

Andrew: Yeah. I agree and I think it…I don’t even…I think to be safe, I’d say…and I would think this is a good business practice too, right? When you have that phone conversation, you’re going to tell people you’re going to pay me a certain amount of money, and in exchange I’m going to show up to your home or wherever it may be, take so many pictures or for certain period of time. You know, you might want to discuss too about the rights you might be giving those folks. And if that’s the sort of discussion you’re having, I think you fall under this exemption. I think arguably you probably might still fall under the exemption, even if you don’t have, get into some of the specifics, like about ownership of may be even price arguably, but you’re definitely in riskier territory uh…at that point. So, that’s my thought on that exemption.

Rachel: Well I agree, cause I think about 99.9% unless you have a retail business. Even I have a retail photography studio, but I have only ever had one person in a year and a half ever stopped by to want to get pictures, and we didn’t even engage in the transaction, because I’m by appointment only. So, I think the majority of portrait photographers that are listening to this, probably 99.9% of them get their inquiries by that electronic communication. I mean, so you’ve had some discussion and meeting of the mind, so to speak, prior to the selling in beginning.

Andrew: Exactly…exactly. And that, I think you’re pretty good. But like I said, so that’s more restricted to those the only two…there were other exemptions, but they are not going…they’re things like, there is one exemption for instance about purchases of products made for emergency purposes which are obviously not going to apply for photographers.

Rachel: [chuckles]

Andrew: So, I’ve highlighted the two, so those were part one and four of that section I mentioned before, title sixteen of Code of Federal of Regulation section four twenty nine part A, part 1 and part 4. If you’re so inclined to look them up. And I think that covers what you’re obligated to do under federal law. But I don’t know, I mean, I could transition  if you like…

Rachel: Yeah..yes.

Andrew: Virginia law highlighted, I mention it’s very…I’m glad, Rachel, you mentioned, you know, obviously every state’s law or jurisdiction or US territories as well, are going to be different. So what I say…well, Rachel and I discussed, may not be applicable to you in your state, and you know, we can figure out if it is. That said, generally speaking, I probably say most or all states have a law similar to…

Rachel: I agree.

Andrew: …what we discussed.

Rachel: Yeah.

Andrew: And generally speaking, and this is one I have…okay I…no, I don’t…I’ve never personally litigated this particular act, it’s called the…let me make sure I get it right…’The Virginia Home Solicitation Sales Act’. However, it is tied to something called ‘The Virginia Consumer Protection Act’ which any business litigator has probably litigated in Virginia, and…

Rachel: [chuckles]

Andrew: …there is the Corollary Act, I’m sure in probably every state. And they are…we’re learning new ones every day, so the Virginia Consumer Protection Act has a list of something like thirty things expressly in that act that might be violated, and that’s a lot of stuff. And then they have…what they do is they have other acts that basically say, here’s another thing that were going to police and if you violate it, you will be punished as if you have violated the Virginia Consumer Protection Act.

Rachel: Oh, my goodness. [laughing].

Andrew: So, that’s what this…this is what this act does. And so it’s interesting when Rachel asked me about this. I looked this up and sure enough, I found this one, and it was right there. They have  laundry list. Here it is, it basically says, here’s this other code sections of the Consumer Protection Act might apply to. So, the Home Solicitation Sales Act has a similar definition to a home solicitation sale, uhm…but it’s…like I say, it’s much more protective, I can tell of business person.

Rachel: That surprises me, actually, to know that Virginia protects the business a little bit more than the consumer.

Andrew: I guess, you know…that, I took a point. It depends what the business is. It seems it depends what the…I’ll be cynical about it or probably it depends upon what particular lobbyist was in whatever legislator’s ear at the time.

Rachel: [laughing]

Andrew: So, you know… you know, it…you’re right, Rachel. It depend…but…I see some terribly unfavorable business laws in Virginia. I’ve seen others that are very favorable. One that I’ve commonly seen is larceny in Virginia. Larceny has been, and I talked about this all the time, has been 200 dollars…uhm, is the line between misdemeanor and felony larceny. Larceny is the theft of something for a very long time and the common knowledge of that amongst Virginia lawyers is that it’s been that way because every time someone’s tries to change it, the business lobby gets up in  arms so that it’s never get changed. So it depends, but aside that aside, so if we look at Solicitation Sale and the code section here is the Virginia code, and that’s section 59.1-21.2. Again, I said I’d tell you some boring numbering that you pay us lawyers to look up for you.

Rachel: It’s good for anybody who want to go to read it themselves.

Andrew: Yeah, exactly. And there’s a few sections. This one is the one to focus on. So, Home Solicitation Sale means a consumer sale or lease of good or services in which the seller or person acting for him engages in a 1) in a personal solicitation of the sale or lease or 2) in a solicitation of the sale or lease by telephone or other electronic means that any residence other than that of the seller. That’s very broad. However, there are exceptions that are very helpful to business person the chief exceptions if you read on later. I’m not going to read verbatim are… Again, you see, for some reason that 25 dollar rule is propagated everywhere. So, it has to be over 25 dollars. And there are two key exceptions we’ll talk about here, that are going to be somewhat saying, of the similar with some respects, that’s the federal rule we’ve just talked about, and different with some respects. The first is, a sale or lease made pursuant to a pre-existing revolving charge account. And the second, probably more applicable is a sale or lease made pursuant to prior negotiations between the parties. That one…that second one…it would seem to me…will exempt most or all people, and like I said, more easily than the federal rule. So, if you have any prior negotiation in person or not, and then you have a second visit…I interpret this to mean is that second visit is now not subject to the act.

Rachel: I mean, could that be as simple as, you email me saying you want pictures for you family, me sending you the booking link with the pricing and information and you filling it in. I mean, could it be as simplistic as that, as, considering a prior negotiation?

Andrew: Yes. I would…

Rachel: Okay.

Andrew: And any discussion, generally, I would interpret a negotiation very broadly.

Rachel: I agree.

Andrew: I think you’d always want…I want two communications that is…because negotiation I think has include two…communications. I agree. Communication can include your own pricing list. It doesn’t have to be a formal discussion of course.

Rachel: And I think that’s where a lot of people have gotten tripped up when they come to me is that they think that it has to be like this…if they read this far in to it, is that they’re like, ‘Oh, all this negotiations’. Well, you’re not really…some negotiation in the way I think many photographers in creative business is, you’re not negotiating like prices. We mean, just negotiation would be like the communication of how much they’re going to pay, how much what you’re going to give.

Andrew: Yeah…exactly right. I think…I would interpret this very broadly. Although, I should be fair. There is a section, since this is a consumer protection act violation. There is a section that was just very recently litigated, in fact by a colleague that went to our law school at the Virginia Supreme Court, and Virginia’s Consumer Protection Act says it should be construed where possible in favor of the consumer and I would believe most other state’s act say the same thing. But that being said, that’s usually only…you fall back on something like that as a lawyer when there’s some ambiguity about what things might mean. And I think negotiation, I agree with what Rachel said, definitely. If you’re on a discussion that says here’s what the price is going to be, I don’t think you… negotiation doesn’t mean you actual reach an agreement, either. It just means, you discussed it, I think. And I don’t think arguably…obviously the more terms you discuss, the better. But like I said, it…it could be something as simple as, ‘I will provide you the following services and you come to my house, and you might be able to get away with talking about things at the physical location. To protect you, I would say, you definitely want to talk about more terms rather than less to make sure you’re following the list of exemption before you make that personal visit to their home.

Rachel: Well, and a copy of an electronic contract can basically do that communication for you.

Andrew:Yes.

Rachel: The contract that’s actually getting you booked.

Andrew: Definitely.

Rachel: See, I couldn’t let that one pass me by. [laughing]

Andrew: I think that’s a good point, Rachel. And I’m thinking of it too, because you know, we getting an…surprisingly enough, we know this, but it’s a very common precept in the law and amongst lawyers that you don’t have to negotiate all terms for there to be a contract…

Rachel: Right.

Andrew: And in fact, that can include things like price which surprises many people. But, if price is not discussed, then the law usually, depending on circumstances, infers a reasonable price…like the fair market price for your services in your area.

Rachel: Yeah.

Andrew: So…yeah, but I agree. Yeah…sending a written contract along, or at least discussing all the terms, saying, you know, ideally from a whole beginner planning perspective, I’d want a client to have at least have a full discussion and then followed by a signed written contract. Failing that, I’d like a whole written discussion by email with the customer saying at the end, ‘Yes, I agree to your terms’. That’s ideal for more than just this law. And yeah…but Rachel, you’re right, I think there’s a lot of different ways under this Virginia Law we’re talking about that you can be exempt. And I mention too, I suppose it’s possible, probably not a preferred model of charging people, but it’s possible that you might have a pre-existing revolving charge account with people. I think that envisions if you had a circumstance where…I’m thinking especially if you are a photographer, maybe with a contract with a business entity that you would avoid all this stuff. Although I should say to all the business that already going to be exempted, because that’s not a consumer sale. So, but yeah that’s… but let me give…may be I should give you the scary stuff too, since I did tell you it was the Consumer…that covers…basically about how you’re going to fall under this act. But if you were to actually fall under that, then here is the scary thing: So, consumer protection and violation in Virginia and like I said, I know Virginia is not the only one with this sort of act, can subject you to civil liability and it’s more severe than just rescission. So, you’re could have rescission like we had before where the person could rescind the contract and ask for their money back. But if it say violation, you’re actually allowed to…you could say, I’ll focus this especially on a willful violation, you’re given, let’s see, statutory damages of up to 1,000 dollars. That means, it doesn’t matter what the person is actually damaged, they can get up to 1000 dollars for a willful violation, a non-willful violation is 500 dollars. Plus, attorney’s fee which will probably be more than 500 dollars. Plus, now that…I told you it’s statutory, if the actual damage exceeds that, now… I could think of some hair brained scheme, but let’s just suppose somebody says, you know, ‘I lost and can plausibly say I lost 5000 dollars because of your scam, which is, what their basically saying if you fall under this act. Not to say any photographer is doing some sort of scam…

Rachel: Right, right.

Andrew: Let’s suppose you lost, now they say ‘I lost $5000 and they’d have to explain how that it is, and there’s a lot of caveats to that. But if that’s true if it’s willful…if you willfully violate this act… Virginia multiplies it by three, so $5000 x 3 is what you’d have to pay.

Rachel: Wow.

Andrew: Yeah. And like I said, I think that’s fairly common amongst many states.

Rachel: Right.

Andrew: So, it didn’t surprise me they’re other states out there with similar law. So, you know, that’s a big deal. So, you really don’t want to fall under this act at the beginning.

Rachel: But I think the good news is, I mean, we’ve kind of well established and beaten it down for them that photographers probably are going to be exempt unless you’re just going… you show up and paparazzi someone at their front door then try to sell them the images right then. We’re pretty well protected with the prior negotiation’s exception.

Andrew: Yes, I think so, Rachel. I think the thing to avoid is like you just described. If you knock on somebody’s door and then sell the services right then and there and then provide them, you know, you’re going to fall under this Virginia act if you’re in Virginia. And in fact, the FTC regulation likewise, you’d fall under that and you probably fall under even if you came back later and provide at the services at some later time. It’s really trying to regulate this continuous door-to-door high pressure sales atmosphere. So, I’d say just to avoid that entirely.

Rachel: Let me ask you one other situation, because I kinda was thinking what if a wedding photographer’s at an expo. But it’s a wedding expo, so a reasonable judge is going to say that a person going to an expo that is a wedding one to meet vendors is going with the intention to secure services. We would be completely exempted to that point, right? I mean, if they sign a contract with me that day, would the cooling off rule still apply? I mean, I’m not on my retail business, we haven’t had prior negotiations.

Andrew: Okay, let’s see. So, if you were in Virginia, no sweat. You had, I think that’s okay. Right. Now, hold on so just to clarify the hypothetical, Rachel. So, you did have some discussion at the wedding expo…

Rachel: At the expo, we talked at the booth and then they sign the contract.

Andrew: Yeah. So, you definitely out of the water on a state law like Virginia’s. Let me go back on the Federal Law, I’m going to say you’re also exempt there.

Rachel: I think just from the fact that a reasonable person going to a wedding vendor fair is going with the intention to enter. It wasn’t like they were blindsided when they are making cookies and the door bell rings and the vacuum guy walks in.

Andrew: I agree with you there, Rachel, because I’ll be the strict statutory guy. Even if we know the purpose of the law, that’s not necessary where it controls the relationship. But I think, you know that’s interesting that you brought that up. There might be an issue there, remember we talked about the two exemptions in the federal act, alright. So, one is made pursuant to prior negotiations in the course of the visit by the buyer to a reasonable business establishment having a fixed permanent location. If you don’t have a fixed permanent location, then no matter where this discussion takes place, that exemption won’t work. Number four we talked about before it conducted and consummated entirely by mail or telephone out any other contact between the buyer and the seller or it’s representative prior to delivery of the goods or performance at the services. I think you have a problem there, you’re not going to be exempted under that exemption, because you obviously had face-to-face contact.

Rachel: Unless they had happen inquire before, and then came to see you at the expo.

Andrew: Maybe. I agree, except that you have to consummated before the expo.

Rachel: Oh, yes. That’s true.

Andrew: To fall under that exemption. There are exemptions for buyer initiating contact, but that exemption applies expressly for asking for maintenance upon personal property. So, that’s like calling up a plumber and asking you to come over and then you consummate the transaction there. That’s exempting like a plumber or a maintenance person, but photographer would not be a person performing maintenance on personal property. So, you know what, just based upon the exemptions we’ve talked about today, the scenario you just described, I think I’m going to have to say there is risk there at the very least…

Rachel: Just as we were discussing, since we have established that the cooling off rule would probably not apply to the majority of photographers. So, I was wracking my brain while you are talking trying to think of a situation and that is one. I mean, because it’s a very potential thing that brides can get caught up at a fair, sign all these contracts and then turn around and cancel them. Like we just saw that the laws not going to apply. What if you signed with somebody, you reserve that date, then another bride came along to sign a contract for the same date, and you told her no because you had already committed to this with the other person. But then, you know, the person and you bride A that you committed to cancels within the three days. I mean, is there anything you can do at that point?

Andrew: That’s a really good question, Rachel.

Rachel: We can leave that for another, maybe a follow up.

Andrew: I always like to say to, like everything I’m saying not legal advice, always depends on the circumstances.

Rachel: Correct, yeah.

Andrew: …law jurisdictions.

Rachel: Oh, they’ve heard that plenty from me, I say that all the time.

Andrew: So, yeah. You know, I would label that right now that scenario we described as problematic and the worst of it is that this door-to-door sale is not really described as a door-to-door sale, unfortunately. So, it…the title is door-to-door sale, but as a matter of…what we talked about was, we was talking about construction, how to read the statute, you usually don’t really give much weight or any weight to the title of something, or the stated  purpose…

Rachel: I think that’s just cause to the original intention, but not indicative of what it’s confined to.

Andrew: Exactly, but it’s says in here. It says you’re going to have consumer good or services with the purchase price of 25 dollars or more in which the seller or his representative personally solicits the sale including those in response to or following an invitation by the buyer and the buyer’s agreement or offer to purchase is made at a place other than the place of business of the seller. So, that’s not, you know, we talked about while the purpose is to regulate door-to-door sales, except that now it says any place other than the place of business of the seller which means a lot of places other than door-to-door places. So, yeah. I think that includes wedding events and you know, wedding expos.

Rachel: I mean, that right there, I just think is exactly why this whole thing has been confusing, because we don’t…many photographers don’t have a single, it’s wherever we land is where we work. [laughing]

Andrew: You know, I would say, you know, get some good counsel from Rachel. You know, somebody like me, but…

Rachel: Yeah, say if I can’t answer, I send everyone to Andrew, so… [laughing]

Andrew: Yeah. But, you know what, though, is the issue is you’re going to have other regulatory burdens. If you fall under it, then you, you know, the federal law or regulation requires you what we said before, to have a written cancellation form that you supply to these people and that you basically advise them of the right to cancel. And if you don’t do that, I have not researched this. So, I just think this is qualified. But it wouldn’t surprise me if there is not just the rescission but there are other…usually there are civil penalties involved with FTC violations. In other words, the attorney general or somebody acting from the justice department could conceivably fine you, and I would suspect, but I’m not sure, that that’s in here. So I’ll just throw that out there too. So then there’s going to be other compliance beyond the fact that, whenever you deal with a federal law there’s just going to be a lot of other compliance that I try to plan my clients around. So, yeah, I think that dealt a lot in that issue. But that’s a good hypothetical law, Rachel. I’m sure we can think about terms that could be…

Rachel: I can sit here and come up with hypotheticals all day.

Andrew: Yeah.

Rachel: So, okay, I think we pretty well covered it. I mean, I…the biggest thing for bringing this to you guys is to make sure they we’re following the letter of the law. I have a lot of questions a lot of people proposing different situations, but the way that Andrew outlined it, and I just kind of want to bring him in since he is the individual that litigates this sort of stuff. I try to help you guys prevent it, but if you ever get into something, he’s the one that does litigation. It’s really good to have another perspective for you all to kind of get this two sided which we ended up agreeing on the majority of this, which that makes me feel real good that I kinda have a little…

Andrew: Rachel’s got a very good head about it.

Rachel: A little seal of approval, but I think that’s fantastic. But, yeah, definitely. If you guys, especially if you’re in the Virginia area, if you have any questions or anything as far as a client issue, Andrew’s the one that I would send to. If you guys have any other questions about this cooling off rule, in federal, it’s three days. Correct, Andrew?

Andrew: Yeah.

Rachel: 72 hours.

Andrew: Federal 3 days and the state of Virginia law will terms also 3 day, and so. The federal law only came in existence, I believe in 2009, so I think the federal law is modeled after some state’s law. So, actually it’s 3 days in most of all…

Rachel: I’ve seen a couple of states that were 2 days, but not very many. The majority were pretty much in line with the 3 days. But if you guys have any questions, you can stick it into the comments below. I’m also going to link, like I said, Andrew’s website. A lot of information you guys can reach out there to get some more. And I’m sure that we can always do a follow up if there is enough questions.

Andrew: Yes, I’d love to. Whatever you only, I love talking to Rachel and answering the questions. And this is the sort of stuff, in fact we have…I’ll have to give a shameless plug.

Rachel: Go for it.

Andrew: We have a new office in Richmond..

Rachel: Do you?

Andrew: Yes, we have 2 attorneys there and they’re both are woman, not to be sexist. But, one of them in particular is very keyed into the wedding industry photography…

Rachel: Perfect.

Andrew: In and around Richmond and so. This is sort of becoming an niche practice for us, especially in the Richmond area.

Rachel: Awesome. Cool. That just like opened the world for me, because Blacksburg is a little far from me to go, but Richmond’s even closer.

Rachel: Very cool. Alright, awesome. Well, Andrew, thank you so much for everything. Again, guys, if you have any questions, stick them in the comment, shoot them to me, or you can shoot them to Andrew and I hope that this has helped you guys be able to clear the air, know that you’re pretty well covered, that when people make that sale, that’s it. Final sale, they know, it’s done. Unless you’ve got these  little exceptions, but other than that, I think you guys are good to go. So, thanks, Andrew.

Andrew: Yeah, thank you, Rachel. I appreciate you having me.

 

Andrew P. Connors is an attorney in Blacksburg, Virginia. He received his J.D. from Liberty University School of Law, and his B.S. from the University of Virginia. In 2013, 2014, and 2015, Super Lawyers Magazine named him a Rising Star in Virginia, placing him amongst the top attorneys under 40 in Virginia. Mr. Connors focuses his practice on business litigation, intellectual property law, business counseling, and appeals. His business counseling practice focuses on business formation, intellectual property protection, intellectual property licensing, and contract drafting, including technology-related contract and licensing agreements. As a litigator, he has represented clients in all state trial courts in Virginia, the U.S. District Court for the Western District of Virginia, the Court of Appeals of Virginia, including the full Court of Appeals sitting en banc, and the Supreme Court of Virginia. He has handled cases involving all kinds of intellectual property matters, including trademark, trade secret, patent, and copyright suits or potential suits.

Before entering private practice, Mr. Connors served as a law clerk for two years to Judge William G. Petty at the Court of Appeals of Virginia. In law school, he was Managing Editor of Student Works of the Liberty University Law Review and won multiple moot court awards.