Lisa Murton Beets

The American Recovery and Reinvestment Act of 2009 (ARRA), also known as the stimulus bill, contains the HITECH Act that amends the Health Insurance Portability and Accountability Act (HIPAA), which was enacted in 1996.

“When HIPAA was first enacted, the health care industry was paper driven,” says Jeff Porter, a director with Kegler, Brown, Hill & Ritter. “HITECH is addressing some long-standing issues with HIPAA, as well as some newer issues that have arisen as a result of the advent of electronic health records and the online transfer of health information.”

Among the significant changes are the expansion of enforcement to states’ attorneys general and expansion of privacy and security provisions related to “business associates” and new breach notification provisions. In addition, penalties can now be imposed on individuals as well as entities.

Smart Business asked Porter for more information about the changes to HIPAA.

Who is covered by HIPAA?

You or a legal representative can determine whether you are a covered entity. The website for the U.S. Department of Health & Human Services ( and the Office of Civil Rights (OCR) provide good guidance in this regard. Covered entities typically include hospitals, nursing homes, medical offices that provide treatment and bill for those services, health insurance plans, and health care clearinghouses (e.g., companies that convert health records and other information into the coding necessary for billing and research). If you are a business associate of a covered entity (e.g., a medical billing firm or a home health care agency), and you are obtaining information for a purpose the covered entity might use it for, you fall under the HIPAA provisions which apply to business associates.

What changes have been made regarding penalties for noncompliance?

The penalties have changed in a couple of significant ways. First, in regard to enforcement, previously penalties could only be imposed on covered entities – now penalties can be imposed on individuals as well. If someone within an organization willingly neglects and doesn’t comply with the rules and makes wrongful disclosures, he or she will be subject to fines, as well as possible imprisonment. Second, in the past, enforcement and violations were addressed solely at the federal level by the Office of Civil Rights. Now, attorney generals are empowered to deal with enforcement and violations as well.

What is the impact on state privacy laws?

Although many believe that HIPAA is the sole controlling authority related to patient privacy, it does not however preempt state privacy laws and regulations. If provisions in the state privacy laws are more restrictive, then those provisions apply in addition to HIPAA. For example, Ohio has some of the stricter state privacy laws in regard to disclosure of protected health information. These laws have to be evaluated and reviewed to determine what additional actions might be needed in terms of notification and disclosures. The question for the future is whether states with these stricter privacy measures will impact exchange of health information with other states. In coming years, if we are going to have more free-flowing medical information, these issues will need to be addressed.

What is considered protected health information?

Protected health information is identifiable information related to treatment of a patient and that is maintained by a covered entity. In certain circumstances covered entities can release this information without authorization, for purposes of treatment, billing and health care operations. Covered entities can’t release information beyond those purposes without authorization of the patient. In addition, specific types of information are viewed as more sensitive (e.g., mental health and substance abuse information, information about certain diseases, such as HIV) in many states and more restrictions on disclosure exist at the state level.

What is a permissible disclosure?

Information can be disclosed if a patient authorizes it. Information must be disclosed by a protected entity if the HHS requests that information as part of an investigation. Permitted disclosures also include treatment information (to help treat a patient); information used to seek payment; or information used in the health care operations category if that information will improve the quality of care overall or part of the business overall.

Do patients have any new rights?

Patients will have a greater ability to try to find out who has accessed their protected health information. Past experience is that most patients never request such information. However, there will now be a greater ability for patients to request an accounting of disclosures. This means that covered entities and business associates could be asked to account for a good deal of information if they get a request. New regulations are being considered in this area, so it is an area to watch.

How can covered entities best keep up with the changes and protect themselves?

1) Keep an eye on releases from HSS about changes. 2) Consult with your legal representative. 3) Make sure your designated privacy officer is properly trained and that he or she is training your employees. 4) Keep open lines of communication with business associates and make sure any contracts you have with them include appropriate provisions that will require they comply with HIPAA and all other state laws which may come into play.

JEFF PORTER is a director with Kegler, Brown, Hill & Ritter. Reach him at (614) 462-5418 or

The massive influx of Wi-Fi enabled devices into the marketplace has created a need for network managers to improve or change their wireless networks.

“AT&T recently reported that 1.2 billion Wi-Fi connections were made during 2011,” says Greg Gerber, senior manager of wireless technologies at PowerNet Global. “By the end of 2012, it’s expected that sales of smartphones and tablets will exceed those of PCs.”

Not only are there more people using more devices, they’re also using more data. Consumers are no longer limiting their use to e-mail and Web browsing — they’re also streaming video.

“When all of this hits, it drastically increases data over the network, presents security issues and exposes other problems, such as dead spots,” Gerber says. “In addition, when a new standard comes out, manufacturers upgrade their products and new devices appear.”

Smart Business spoke with Gerber about how network managers can keep up with the increasing demands on their wireless networks.

What is the first step the network manager should take when considering adding to a company’s network?

You have to assess your present networking capabilities before you add anything. During the discovery phase, examine how your wired network is currently designed. You probably know what devices you are interested in adding, so you explore ways to build your network to meet the increasing demands.

Look at what you have in terms of bandwidth. How much do you have as a whole and how is it being used? How much additional bandwidth will you need for the devices you want to add?

What else should be considered during the discovery phase?

You have to consider how much data newer devices consume. One university found that the iPads on its wireless networks consumed 400 percent more data than any other wireless device on the network, primarily due to video streaming.

Will you allow tablets on your network? If so, you need a realistic estimate of increased data use. You also need to determine how much mobility you will provide with your network. Will you also require additional bandwidth for video conferencing, projectors, smartboards, video surveillance, etc.?

You also need to review your security policy. How do you allow users to access the network? Do you need to segment that access? How will you authenticate users and watch traffic? How will you identify and stop rogue users?

What is the next phase?

The next phase is the site survey. Some vendors provide this service, but I recommend that you also utilize a vendor-neutral integrator that is certified from a vendor-neutral source. This should be someone who has a broad range of experience over a range of industries, along with networking experience.

There are different types of surveys. A ‘passive’ survey is one in which someone comes in and measures the signal levels around the building. That’s OK, but if that’s all that is done, that’s not enough. There should also be an ‘active’ survey, during which the surveyor moves around and tests real performance on links with the worst possible device.

Some companies do a ‘predictive’ site survey, in which you send in your building plans and the company sketches out a best guess scenario, but this is not an ideal solution. A good site survey will contain more discovery and consider factors such as future growth, total number of users in each area per access point and areas where security is more of a concern.

What is one of the most important things that should be done during the site survey?

A spectrum analysis should be undertaken. The surveyor scans all frequencies to be used and detects any areas of interference. A good site survey should result in a wireless map that shows you where the access points will be placed and what you can expect in terms of strength of signal and mobility. If done right, you’ll be able to deploy with confidence. The site surveyor will then make recommendations on a vendor that fits.

What types of networks are available?

There are controller- and traffic-based environments, which usually duplicate things you already have (e.g., firewalls and traffic analyzers). There have been some huge differences in technologies over the last three years. The real differences start to show up with vendors who are using beam forming technology.

With this technology, user performance is improved by 10 times what it used to be when compared to standard antenna technology. Beam forming technology has been around for a long time in applications such as radar but is just now finding its way into Wi-Fi.

What should a company look for in a vendor?

Does it have a complete set of solutions to handle a campus environment? Does it have indoor- and outdoor-rated equipment and bridge kits (point to point wireless to provide service between buildings)? How does the vendor handle voice, data and video? Can it integrate correctly with how you want to segregate your network? How long will it take to install the system?

Also look at other jobs the potential vendor has done. Is the work neat? Finally, be aware that there are huge differences in terms of warranties. Look for a lifetime warranty without excessive support costs.

GREG GERBER is senior manager of wireless technologies, IEEE Mbr. No: 90528541, PowerNet Global. Reach him at (866) 884-9976.

Over the last year, the National Labor Relations Board (NLRB) has issued a number of rulings pertaining to employee use of social media. These rulings impact how employers can word and enforce their social media policies.

“The NLRB has ruled that online employee comments and conversations — regardless of whether the employees are union or nonunion — are ‘protected concerted activity,’ similar to coworkers chatting around a water cooler, so long as they are more than ‘personal attacks’ against a specific person,” says Brendan Feheley, a labor attorney at Kegler, Brown, Hill & Ritter.

Feheley adds that while an employer can’t control every move its employees make online, employers do need to monitor content and be conscious about what employees are saying in order to protect their brands. At the same time, the employer needs to be careful not to violate employee rights or take actions that could be found to be discriminatory in nature.

Smart Business asked Feheley how companies should evaluate their existing social media policies.

What are some of the key areas where a company needs to protect itself?

The protection of trade secrets is very important. You have to be very careful about the types of recommendations employees give; they can’t endorse products without disclosing themselves as employees, and certain statements can constitute SEC violations. There is also a huge brand protection issue. Social media is the way Gen Xers and Millennials get their information, buy things and make decisions. You want to be sure your company is seen in a favorable light. Companies also need to be careful about how they approach their employees’ personal use of Facebook. You may want to mention in your social media policy that you may periodically monitor employees’ Facebook activity. If they are aware of this, perhaps they will take steps to protect their profile, which basically is a protection for both the employee and your company. Companies should be careful about running Facebook searches on job applicants. Wait until the initial round of in-person interviews has taken place to help protect your company against claims of discrimination based on a Facebook profile.

How can a company determine if its existing social media policy is strong enough?

Pay attention to what is going on in your specific workplace. Do you have problems? Are you seeing negative Facebook posts? Do you see instant messages going through Facebook? If so, is that causing a major problem with productivity? If you’re experiencing problems, change the policy to address them.

How can a company avoid infringing on employee rights?

Be in touch with how the courts are interpreting social media cases. Your policy cannot be overly broad. Put language in the policy that states that nothing is intended to violate state, federal, or NLRB laws. Be cautious any time you discipline an employee for something he or she does online. Discipline can mean many things — a written warning, a schedule change. It’s fine to talk with the employee; make sure they’re aware of what you want them to do. But be careful about disciplining them.

Does a company need a separate policy for every social media outlet out there?

Probably not. An alternative is to list each outlet and provide general guidelines for each. It’s also prudent to explain what types of information you monitor, save and may possibly read (e.g., instant messages and e-mails). Another thing to be aware of is the high risk that today’s camera phones pose. These devices make it very simple for employees to take pictures or videos of client lists and other confidential documents. You may want to consider adding wording to your policy that tells employees that if they use a smart phone at work — regardless of whether they own it or you own it — that you reserve the right to monitor the data and pictures stored in the device (similar to the way you might reserve the right to search an employee’s purse or bag).

How can a company best implement its policy?

Train your managers the best you can. There is a very fine line between Big Brother and the reasons behind the policy. Make sure your managers know you are monitoring the messages they give to employees about what employees can and cannot do. Managers shouldn’t be using the policy to threaten employees — but rather they should be promoting the policy as a tool that will protect everyone at the company. The policy should not be a sword, but a shield.

Who should be responsible for the social media policy and how often should they revisit it?

A committee should be responsible; it should be composed of a mix of employees including representatives from IT, HR and marketing. The policy will only be as good as its enforcement. Due to the rapidly changing nature of social media, the committee should meet once every two to six weeks — or at least once per quarter — to discuss developments. The IT folks might address how much time employees are spending online, the HR staff might bring specific online postings to the committee’s attention, etc. This is not the committee members’ regular job, so be sure the meetings are on the schedule so the discussions can take place.

BRENDAN FEHELEY, associate at Kegler, Brown, Hill & Ritter, specializes in labor and employee relations. Reach him at (614) 462-5482 or

A realistic and in-depth understanding of who a company’s customers and prospects are is the foundation on which all business and marketing strategy is built.

“Many times entrepreneurs have an intuitive sense of who their customers are — and this should not be discounted; however, as a company grows, that perception can become detached from reality,” says Wes Phillips, agency principal at Orange Label Art + Advertising. “Therefore, companies need a system in place that not only identifies the quantitative and qualitative profiles of prospective customers but also identifies the types of messages they will respond to.”

“This understanding helps a company develop powerful messages that reach the right people and motivates them to take action so you can increase sales  and generate greater profits and more market share,” adds Rochelle Reiter, also an agency principal at Orange Label Art + Advertising.

Smart Business asked Phillips and Reiter how companies can better understand their customers and prospects and leverage this knowledge to increase the bottom line.

How does a company go about gathering market research?

Depending on the size of the company and resources available, there are many ways to obtain this information. The main types available include formal market research, focus groups, online market research and informal research. The first step is to determine which method is most appropriate for the specific business and current circumstance. This can be done by meeting with various market research companies and or marketing firms to get a sense for what is available.

What are the main forms of market research?

The traditional approach, which requires a significant budget, is to conduct formal market research. This approach requires investment in terms of time and money. It will take 3 to 12 months to gather the data and incorporate the findings into a marketing plan. It also will require a commitment from the senior management team to support the research, because many times the findings will be contrary to preconceived notions they may have.

Another faster, more economical way to gather information is to use focus groups. Focus groups should be facilitated by an outside resource. The data may not be statistically valid, but it is still highly relevant and actionable and the results can be known quickly.

Online market research is another option. The advantage is that the research can be completed very quickly. Companies should take caution with this approach, though, as there is some uncertainty regarding the validity of the responses. Or the questions may be so objective that subjective issues, which can surface when using a more one-to-one approach, may be overlooked.

Small and medium-size businesses often find it difficult to implement formalized and statistically valid studies and/or focus groups. Another approach is to interview 20 to 30 existing customers and 20 to 30 prospects, asking the two groups the same set of questions. This method is commonly known as informal market research. Two questions that every company should ask existing customers are ‘What would you never change?’ and ‘What would you change if you could?’ Respondents will give real-time responses, in their own words, regarding what they like about the product or service, why it’s working for them and the benefits they’re experiencing. They’ll also reveal what’s not working, why it’s not working and the missing benefits. From this information, a company’s marketing and/or creative director will be able to identify the words or phrases that are being used over and over, the way benefits are being described and the recurring themes and messages, and take that information to creatively position the emotional selling message and select the right types of media.

What should the company do when the research is finalized?

The research needs to be incorporated into the company’s strategic marketing plan, which can be produced by the internal marketing department or an outside advertising/marketing firm. The strategic marketing plan includes a communication strategy that defines the creative messaging, the media vehicles used to deliver the messages, the frequency for delivery and the desired results.

How will the data impact strategic marketing decisions?

The data acts as a catalyst for the messaging — so it impacts the entire communication strategy. It also informs how the messages are developed, guides and directs the words and images that are used, influences the media that will be used to communicate the messages and helps to determine how much budget should be allocated to achieve successful results.

What is the impact on the bottom line when businesses understand their prospects and customers?

Research will provide information that, if used, will make a company more successful. Sometimes research surfaces insights that are unexpected and may initially appear to be negative. It may reveal that a product’s real benefits are not what were initially believed. This is powerful information because it provides insight into areas that can be managed before it’s too late (e.g., perhaps the R&D budget needs to be increased or the sales department requires additional resources). This insight allows a company to go back and revisit a product or service to evolve or enhance it and improve its competitive edge. Other times, conversations with customers and prospects may provide entirely new insights to evolve messaging to stay relevant and competitive.

Ultimately, the goal is to achieve a higher ROI on marketing investments (i.e., obtain more leads that convert to sales at higher profit margins). Higher margins mean a company can afford a better sales team and better distribution channels and can provide better returns to shareholders.

WES PHILLIPS and ROCHELLE REITER are the agency principals of Orange Label Art + Advertising. Reach them at (949) 631-9900 or or

Companies that have maxed out their 401(k) plans but still have discretionary income and steady cash flow available for retirement benefits may want to consider a cash balance pension plan.

“A cash balance pension plan is technically a defined benefit pension plan which has features that resemble a defined contribution plan,” explains Tom Sigmund, firm director and chair of the Employee Benefits & ERISA practice at Kegler, Brown, Hill & Ritter. “Like a traditional defined benefit pension plan, the employer bears all responsibility for funding and investing, and the value of the assets do not impact the promised benefit. However, the benefits are depicted as an account balance.”

Sigmund says that a cash balance pension plan is an especially popular tool for professional practices.

“If they have not maxed out their 401(k) plan, we recommend that they do so prior to establishing the cash balance pension plan. In combination, these two plans can enable the organization to cost effectively meet a variety of goals relative to the principles of the practice.”

Smart Business asked Sigmund to further describe cash balance pension plans and how they might benefit an organization.

What is the difference between a cash balance pension plan and a defined contribution plan?

The cash balance plan is technically a defined benefit pension plan subject to benefit limitations. However, the plan defines the promised benefit as an account balance that grows based on a defined rate of return. It is then up to the employer to fund the plan and invest the plan assets so as to have enough to pay the promised benefits. Whereas with a defined contribution plan, contributions are limited. Contributions are defined and actually made to the accounts of the plan participants and the actual rate of return on plan investments directly impacts the benefits provided to the plan participant.

How is it structured?

The plan specifies a dollar amount or percentage of pay per year to be credited to the participant’s account, along with a hypothetical rate of return. The interest rate might be a variable indexed rate, such as one geared to 30-year treasury bonds or it could be a fixed rate. An actuary determines how the company will meet its commitments. You can be very flexible with how you structure the plan, subject to discrimination laws. For example, you can have two individuals who are the same age and earning the same salary getting different benefits. Or you may have two individuals of different ages getting the same benefits. For example, a medical practice with two partners of different ages who both want to contribute $50,000 per year may have their respective benefits defined as $50,000 per year plus a 5 percent rate of return.

Are there contribution limits?

There are no contribution limits per se, but there are benefit limits — which you can control — that drive the funding. The benefit limit for 2012 is a life annuity of $200,000 per year commencing at age 62. This translates to a lump sum distribution of more than $2.3 million.

Why would a company wish to sponsor such a plan?

A typical scenario that plays out well is when a company sponsors a 401(k) that is maxed out but still has more discretionary income available. Or perhaps there are participants in their 50s who are getting a late start on retirement savings — even with the catch-up allowances, a 401(k) plan could not produce as much retirement savings as a cash balance pension plan with its $2.2 million lump sum benefit limit. A cash balance pension plan can also be a very effective way for a younger partner to indirectly buy out an older partner who wishes to exit.

What are some things to consider when investing the assets of these plans?

As with any defined benefit pension plan, having enough assets in the plan to cover the promised benefits is critical. The targeted rate of return on plan investments should be the defined interest crediting rate. Poor investment performance will require more contributions and investment returns in excess of the interest crediting rate will not impact benefits but may, in fact, give rise to an excise tax when the excess assets are returned to the employer upon plan termination. The interest crediting rate drives the benefits. According to the IRS rules, the interest crediting rate must be a ‘market rate of return,’ which essentially translates to a moderate rate of return.

Are there any proposed regulations that would change the way these plans are structured?

The IRS has issued proposed regulations which would allow cash balance pension plans to define the interest crediting rate as the actual rate of return on the plan investments. The hypothetical contribution amount or the percentage of pay that is promised each year must however be preserved. A plan structured in this manner would look more like a defined contribution plan than ever. It is not likely that these proposed rules will become final any earlier than January of 2013.

Are the workings of these plans very complex and, if so, would that be a deterrent to a company seeking to establish one?

They are complex in the background, but that’s why you hire experts — an attorney, third-party administrator and good investment advisors who understand these types of plans. Once established, the plan and its promised benefits are as simple to understand as a 401(k) plan.

TOM SIGMUND is firm director and chair of the Employee Benefits & ERISA practice at Kegler, Brown, Hill & Ritter. Reach him at (614) 462-5462 or

Securing media space or time for the delivery of your advertising messages, also known as media buying, is a high-stakes endeavor. With the proliferation of options available, it has become more important than ever to select the right vehicles for getting your message out, and to make sure you have the right people making those decisions.

“Media can be bought in magazines, newspapers, television, radio, billboards, gas stations, malls, on websites, search engines and mobile phones. Media buying opportunities are popping up just about anywhere there is a possibility to connect with consumers or businesses,” says Rochelle Reiter, agency principal at Orange Label Art + Advertising.

“You want to make sure that the internal team or outside firm making the media buying decisions has experience with all types of today’s media options, knows how to negotiate and understands marketing and creative strategy,” adds Wes Phillips, also an agency principal with Orange Label Art + Advertising.

Smart Business asked Reiter and Phillips how companies can get the best bang for their media buck.

What is the strategic role of media buying?

Media buying is strategic because it is where a significant amount of the advertising budget is spent. If care is not given to media buying, dollars are spent that produce weak results, which slows down sales volume and is discouraging to the organization. Many companies spend at least 2 percent of annual revenue on advertising, and for some businesses the amount is 10 percent or greater; this expenditure is so great that it requires careful thought about who is going to make the decisions.

What strategies are required for effective media buying?

Effective media buying begins with researching the most appropriate vehicles to reach the target demographic given a specific budget. With digital media vehicles (online, mobile, etc.) now available, knowledge of the terminology used for each medium is important. Once the media vehicles are selected, it’s necessary to determine the appropriate schedule and frequency within each medium (i.e., when that schedule is going to run and how often it will reach the demographic given a specific time period). The next step is to negotiate the schedule in terms of price and placement to ensure the best possible value and response.

Who should do the buying?

It depends on how your company is structured. If you have an internal marketing department, it can be managed internally, however, your team must have a background in both traditional and digital media. You need staff members who can keep up to date on how media can be purchased and how they are analyzed. In the past, once you learned something, the frame of reference could last for years — today, it is for months only. So you need to retain people who are motivated to stay current, and these types of individuals typically demand high levels of compensation.

You can also look to an agency to do the buying, but make sure they have the same expertise you would demand of an internal resource. An agency works with numerous companies and will know what kinds of deals others are getting on their media buys and can negotiate effectively on your behalf. If the media buying is done internally, your staff may not have a frame of reference for what other companies are doing or getting. There are also media buying services, but sometimes they can lack depth in marketing and creative strategy, so be careful.

How can a company ensure that the buy is efficient?

Analyzing the efficiency of a media buy occurs in two phases: a) pre-buy and b) post-buy. The pre-buy requires analyzing data and metrics to ensure the buy is focused and targeted at the desired demographic and negotiating the highest value for each media dollar spent. A post-buy analysis occurs after the buy has run and will show you the cost per lead and the cost per conversion, which demonstrates how effective the buy was. It will let you know whether the buy worked and will help you determine future decisions.

What is the difference between branding and direct response media buying?

Organizations have various goals and objectives at different stages in their lifecycle. One may be looking to simply generate brand awareness and others may want to generate direct response from their campaigns. Media buying to generate brand awareness involves buying more reach-based vehicles such as television (i.e., Coke or Apple buying prime-time television). Direct response buying involves buying more frequency-based vehicles such as radio, pay-per-click Google ads or cable television. Direct response advertising can often be identified by the specific call to action, repeated multiple times.

How does media buying fit into an integrated marketing and advertising plan?

Effective media buying is only one component of an integrated marketing plan. For the media buy to be effective and achieve marketing objectives, such as generating brand awareness or moving people to action, the marketing message must be compelling. Developing powerful marketing messages involves researching the target demographic and understanding how to craft a unique and relevant story that resonates with the target demographic — and then determining the best vehicles to deliver those messages so they motivate targets to take action.

WES PHILLIPS and ROCHELLE REITER are the agency principals of Orange Label Art + Advertising. Reach them at (949) 631-9900 or or

The first and most important thing a company can do to protect its intellectual property (IP) is to identify it.

“A business cannot protect its IP assets if it is unaware of the existence and significance of those assets,” says Robert G. Schuler, director and chair of the Intellectual Property area at Kegler, Brown, Hill & Ritter. “An IP audit is one way a business can identify its IP assets and ensure that proper steps have been taken to protect those assets.”

Schuler also says it’s important to educate your work force on the basics of intellectual property. “It does a business little good if the only ones who are aware of the company’s IP assets are those in upper management. More importantly, an educated work force is less likely to infringe another company’s IP, putting their own company at risk.”

Smart Business asked Schuler for tips on protecting intellectual property.

Why do businesses struggle with identifying their intellectual property?

Companies struggle for two primary reasons. First, when talking about intellectual property, you’re talking about intangible and quite often very abstract rights. It’s one thing to know how many widgets you have. It’s quite another thing to know how many copyrights or trademarks you may be using in the business, because that requires an understanding of what is subject to copyright or trademark protection.

Second, quite often the decision makers at a company are not on the front lines; they’re not actually in the room when various inventions are conceived or when marketing campaigns are developed. They may not be aware of the key IP that is being developed. This disconnect between employees and decision makers can result in a failure to take the proper steps to protect intellectual property and, accordingly, a loss in value to the business.

What areas are commonly overlooked?

It really depends on the business. If your company is heavily focused on technology research and development, you are more likely to be focused on patent or trade secret protection and may not be as focused on issues relating to trademark and branding. Conversely, if your company concentrates on marketing, you may be focused on trademarks and may overlook the value of other key IP assets, such as your trade secrets and know-how.

If I were to pick one category that is most often overlooked, or undervalued, it would be the business’s trade secrets, which comprise the truly confidential information and know-how that gives a business its competitive advantage. The law requires that you take reasonable steps to keep the information secret, and, if there is ever a dispute, the court will scrutinize the steps you took. So someone within the organization needs to be aware of the business’s trade secrets and ensure that appropriate measures are in place, which includes the use of non-disclosure agreements and appropriate IT security.

How can a company identify its intellectual property?

The first step is to have an intellectual property attorney do an audit to identify your IP assets and the steps you have taken to protect them.

The audit can usually be done within a few hours for a small company or within a day or two for a larger company.

Reach out to the attorney early on and he or she can identify who in your company will need to attend the meeting and let you know what those people will need to bring to the meeting.

Make sure all the right people are meeting with the attorney. If R&D is involved, have the head of the division there; if marketing is involved, have the person familiar with all marketing efforts present.

The attorney can also suggest best practices to help a company identify and ‘mine’ its valuable IP assets more easily going forward, which can include training, invention disclosure forms, and appropriate clearance and review procedures for marketing collateral.

How can a company protect its assets?

With respect to trademarks and copyright, if they are important to your business, you need to register them — period. Doing so will significantly enhance your ability to protect them.

In regard to new inventions, processes, and designs, talk to a patent attorney. If they are subject to patent protections, the patent can give you exclusive rights for a certain amount of time and the benefits can be immeasurable.

You also need to think globally. Make sure you’ve taken the proper steps to protect your trademarks in key foreign jurisdictions in which you conduct business. In regard to patent protections, be sure your patent attorney is aware of all countries in which you are making or selling your products so that a proper strategy for protection can be put in place.

How should a company proceed if it is accused of infringing on someone else’s IP?

The most important advice is this: Get experienced legal counsel involved immediately. If the attorney can put together a well-reasoned, researched response out of the gate, you’ll maximize your opportunity to avoid costly litigation.

ROBERT G. SCHULER is director and chair of the Intellectual Property area at Kegler, Brown, Hill & Ritter. Reach him at (614) 462-5410 or

Wednesday, 30 November 2011 20:01

Using digital marketing to connect with customers

Online, mobile, digital — everyone’s talking about digital marketing. But is your business or organization using it?

“Marketers have more opportunities than ever to access prospects and customers,” says Wes Phillips, agency principal at Orange Label Art + Advertising. But until you understand how these tools specifically work for your company, don’t run and put all of your advertising budget into digital. You need to take the time to learn how the digital channel of communication is going to work for your business — how it’s going to fit into your existing marketing strategy.”

“Digital should be viewed as part of an integrated plan. Do your research first and have an appropriate strategic approach,” adds Rochelle Reiter, also an agency principal with Orange Label Art + Advertising. “You need to understand your customers’ mindset — how they are accessing information. Then you can adjust your messaging and develop distinct campaigns for both online and mobile platforms.”

Smart Business asked Phillips and Reiter how businesses can be sure they’re taking the right approach when moving forward with digital marketing.

What recent advancements and/or tools in online marketing and advertising should businesses be aware of?

Today, in addition to traditional websites viewed on desktops, consumers are seeking information about businesses via mobile devices (smart phones and tablets). Both desktop and mobile bring new opportunities to marketers through the use of social media, apps, and online video — just a few of the many vehicles available to help businesses connect with customers and prospects. The advertising models have also evolved with digital and mobile to include the Pay-Per-Click (PPC) method (versus impression) so that you are paying only for the people who are seeking out what you offer. This has proven to be very effective for direct response advertisers. Also, there are measurability tools, such as Google Analytics, so an advertiser can understand which strategies are working and which ones aren’t.

How is the increase in mobile devices affecting marketing and advertising?

Approximately 60 percent of mobile phones today are smart phones. Mobile isn’t replacing the desktop, it’s providing another way to connect to prospects and customers. By the end of 2011, 25 percent of all searches will be mobile. When someone reaches out for information on their mobile device, they should be able to access information easily and find the most pertinent information about your business. This holds particular importance with local businesses such as restaurants, and is extremely effective for retail advertisers. Having a powerful mobile strategy entails ensuring that your website is mobile friendly, that your messaging is tailored to the mobile device and that you have specific ad campaigns targeted at the mobile user.

How can a business determine what digital marketing strategies are right for them?

It all begins with understanding your customers and how they access information. There is no one-size-fits-all approach. When you understand your customers’ behavior patterns, it will lead you to the answers. Do research to a) know who your prospects and customers are, b) find out how they intellectually and emotionally perceive your product or service and c) make sure that you’re using the appropriate media vehicles to connect with them. A simple way to gather this information is to take a sample group of prospects and customers and ask them these questions, along with inquiring about how they would like to receive your information. Then, an integrated plan can be developed with a customer-centric focus.

Who handles the actual work involved with digital?

It is very easy to get sucked into do-it-yourself digital. Every business owner is bright enough to do their own income tax return; the same holds true with digital. Yet, the more prudent approach would be to have someone experienced on staff to manage the initiative or to hire a freelancer or another outside resource with expertise in both digital marketing and marketing strategy.

When you are unfamiliar with all the terminologies and how the media channels can be used, it’s easy to be swayed. Just because someone understands the technology doesn’t mean he or she will understand your marketing objectives and how your prospects are persuaded, motivated and moved to action — and how to combine all of that to create messages that will produce results in the digital realm.

What special considerations should a business take into account?

From a digital perspective, you have an audience’s attention far longer than with other forms of media. When online, the prospect or customer is already searching, so transparency is critical. Make sure all of your digital information is current, accurate and relevant.

For many businesses, the ongoing investment in the website component can be quantified as the expense of an additional full-time, low-cost employee. For about $10 an hour, this ‘digital employee’ will work for you every day, every hour. And if you care for it through SEO (Search Engine Optimization) and back end support and ensure the website is relevant (regular updates and enhancements) it will perform not like an entry level employee, but as a 24/7 VP of marketing to a) attract more prospects and b) generate sales at higher margins. It’s a modest investment that will pay a big return.

WES PHILLIPS and ROCHELLE REITER are the agency principals of Orange Label Art + Advertising. Reach them at (949) 631-9900 or or

Good news: It’s an ideal time to start a business in Columbus, according to Steve Barsotti, a director with Kegler, Brown, Hill & Ritter.

“The downturn in the economy has sparked a lot of activity in the startup space over the last few years,” Barsotti says. “Some people have started businesses by necessity as other career avenues have been cut off to them. Fortunately, the business community here is very open, with many resources available and a lot of formal and informal support.”

Barsotti emphasizes the importance of having a good business plan along with good records, books and documentation right out of the gate. “It’s critical to talk with good counsel and accountants when you first start out,” he says. “For a relatively small investment, they will help you set up the business in a way that will maximize your opportunity for growth and avoid more expensive problems down the road.”

Smart Business asked Barsotti about key considerations when starting up a business.

How does one determine the best legal structure for his or her startup?

The best legal structure depends on a number of factors, but it’s particularly important for startup companies to structure in a way that allows for flexibility and growth. The limited liability company (LLC) format is typically a good choice for startups because it provides for pass-through tax treatment and also allows the company to bring in different types of investors and structure preferred returns that investors in a start-up will often expect. Again, basic up-front legal and accounting advice can be critical. Oftentimes, new clients come to us and have already set up a structure that is less than ideal.

How important is the business plan?

A good business plan is the key. Without a good plan, there’s really no chance of getting any funding. It’s easy to get stalled.  And it’s important to have a plan that is well researched and thought-out, but also builds in some flexibility. In the startup phase, you need the flexibility to improvise and adapt quickly.

Too often an entrepreneur might have a kernel of an idea, but they have not yet gone through the projections and numbers to determine if it would work as a business. The Small Business Administration (SBA) has good online resources for creating basic business plans.

How can an entrepreneur find funding in the present economic environment?

This is the toughest question for an entrepreneur to answer during the startup phase. The answer depends on the business’s capital needs and what is realistic.

A lot of businesses, in particular internet-based businesses, can be boot-strapped because they are not necessarily capital intensive. The owner uses personal savings, home equity, credit cards and ‘sweat equity’ to get the business off the ground. Asking friends and family is another common avenue, but this raises issues of securities compliance and can get pretty hairy if the business fails.

Because traditional bank financing has been difficult to come by, we’re seeing increased activity in private placement of equity investment with angels and accredited investors at an early stage, particularly for entrepreneurs who have a positive track record. Although bank financing is still tight, I always recommend talking with bankers to see what might be available. If nothing else, it can help develop a relationship and the banker can give helpful feedback on the business plan.

How can the owner protect his or her ideas and products right from the beginning?

At the startup phase, you’re trying to set up your business for cost-effective growth. Protecting your intellectual property is critical to that effort, and all startups should have an appropriate IP strategy, which will differ dramatically depending on the nature of the business. For some startups, strategic patent filings have to be made despite the cost in order for the business to have any real chance of success in the long-term.  For others, patents may not be an issue, but speed to market or effective brand protection may be more critical.  In all cases, you need to be smart and selective about whom you share your ideas with and you need to have basic contractual protections with those involved to protect confidentiality and to ensure that IP ownership is clearly vested in the company. Having template contracts drawn up is a small investment up front, but the consequences of not having them can be devastating and negatively impact the value of the business you’re trying to grow.

This will also help set the expectations of the people you’re dealing with.

What should the entrepreneur be aware of in terms of contracting labor or hiring employees?

Again, have good contracts. Ensure that confidentiality and non-compete agreements are in place and that intellectual property will be effectively transferred to the company. Be aware of regulatory guidelines that will help you determine whether someone is an independent contractor or an employee. If you need to hire employees, make sure you are in compliance with insurance requirements and tax filings. A good payroll service and a good accountant can certainly help avoid problems.

How can the business get additional help?

Columbus has really developed a solid network that supports startup activity.  Technology companies (which include more than you may think) can find assistance with the TechColumbus TechStart Incubator, which has a high-profile presence and provides typical incubator support. In addition, the Columbus Chamber of Commerce is actively working to promote startup activity in the community and provides good networking, research and other support services. It can be a terrific resource for entrepreneurs.  Many times, the key to success is simply connecting people with the right experience, vision and skill sets.

STEVE BARSOTTI is a director with Kegler, Brown, Hill & Ritter. Reach him at (614) 462-5458 or

There’s an old saying that nothing can happen until a sale is made. Certainly sales is not the only area of business that needs to be addressed while working toward building profits, but because of the urgency of today’s economic times, sales are top of mind for CEOs everywhere.

“If you’re trying to make an immediate impact in your company and build momentum toward growth, sales is a perfect place to begin,” says Wes Phillips, Orange Label Art + Advertising.

Smart Business asked Phillips and Rochelle Reiter, agency principals at Orange Label Art + Advertising, to clarify who is responsible for what when a company’s sales are on the line, and how those roles can best prepare their organization for success.

What are the CEO’s responsibilities in regard to sales?

The CEO has a responsibility to 1) drive profit and build value as it relates to the sales function – to ensure the right team is in place and supply support so there can be strong sales at higher margins; 2) ensure that the existing customer base is immune to the activities of competitors; 3) put systems in place for managing ongoing sales to the existing base; and 4) create a selling environment that combats commodity selling.

The first and fourth areas are the places where CEOs can make a difference right now.

How can a CEO evaluate and maximize the sales team’s activities?

The quickest way is to go on a sales call and let the salesperson do all the talking. Listen to what they are saying not only from a content standpoint, but also in terms of delivery. Is he or she confident? How are objections addressed? Spend a full day or week in the field to get a sense of what is going on in the market and what the reps are doing and how it’s resonating, and then go back and retool or refine the script. You may even identify things about the product itself that need improvement.

When you return to the office, consider what is ‘working’ in the field. Define what ‘working’ means, and then create SMART (specific, measurable, attainable, realistic and timely) goals with and for the team. Put the goals in place and measure them on an ongoing basis. Even if the salespeople are engaged, there may be a gap between what they are achieving and what the objectives are. So be sure the goals are clear and that you’ve communicated them to the entire team.

How can the CEO ensure that the sales team is equipped with the most effective tools and materials?

The first step is to ask them what they need. It might be more traditional tools such as brochures or one-page fliers. Or it might be digital tools, such as e-newsletters — anything that can promote constant contact with customers and prospects. They might need a better database to draw from and for following up with prospect. Maybe they need to be better backed with a solid brand identity, better sales support, or advertising and marketing.

When asked what they need, salespeople will almost always say ‘lower prices.’ That is to be expected, but it’s rarely the thing to be managed first. Keep the focus on what you can do to keep leads warm and how you can equip the team to make contact last longer.

What is the role of the VP of sales or head of the sales department?

It’s up to the CEO to give accountability standards to the VP of sales, who is then responsible for developing the tactics. This person collaborates with salespeople and monitors their activity; identifies and addresses any performance gaps; ensures that salespeople are matched up with the appropriate accounts; ensures the efficiency of the farming cycle and works to improve it; works to increase the number of leads within the existing budget and the number of conversions; identifies purchase and buying trends in the market; and consistently interviews for new salespeople to ensure that the pipeline of talent is never empty.

The VP of sales is also responsible for training, recognition, and keeping the team motivated and productive. He or she should create an environment that is encouraging and that defines and rewards success.

What is the best way to shift the culture toward cultivating sales or new business?

Share new business with the entire team. Celebrate successes. Recognize areas for improvement. Hold brainstorming sessions across departments and ask for ideas to generate sales. Develop incentive programs — not just for salespeople, but for all employees. Make sure the team is generating new sales from the existing base and that your customers know everything you offer. Look at the systems in place in every department and identify ways to streamline them so they don’t get in the way of making sales.

Make it easy to buy from you. The net result will be happier, more loyal customers and your salespeople will have more time to sell.

WES PHILLIPS and ROCHELLE REITER are the agency principals of Orange Label Art + Advertising. Reach them at (949) 631-9900 or or