Ask Wes Anything: 4 Tough Legal Questions for Attorney Wes Carter

Show Notes

Attorney at law Wes Carter answers legal questions regarding interviewing potential employees, what to do when another business tells you to stop using their name, how to craft an effective and legal no-brainer in the medical profession and more

Typical attorney fees – $300-$400 per hour

  1. The client wants to know if you legally have to tell applicants to interview why you chose to not hire them, or if “it just is not a good fit” is sufficient as part of the interview process.
    1. You are not required to tell them yes or no but it is good practice to give them an answer.
    2. Anything you say can and will be used against you.
    3. You couldn’t say:
      1. “Bernie, you’re just too old.”
      2. “Bernie, you’re just too white.”
    4. If you have someone giving feedback that doesn’t know how the law works then you will have a lawsuit on your hands.
    5. It is best to tell the candidate that we don’t have a spot right now or that they are not a good fit.
    6. The best thing you can do is to keep it short and sweet.
  2. Custom Builders – Houston
    1. There is a large commercial builder in Houston.
    2. December 2018 received a Cease and Desist letter from a larger builder in Houston for using their name.
    3. This is a very large company here in Houston.  
    4. The attorney for my client has told them to take down their retargeting ads and they are trying to avoid going to court.
    5. Legally – what is the path here for them?  They have an attorney. Do they have any rights to their name?
    6. What do we advise them to do?
      1. The test is to find out if the name of the business causes confusion.
      2. When you are talking about “Branding” you are talking about trademarks
    7. Step 1 – Verify the other company has actually registered the trademark
    8. Step 2 – Determine who was using the name first
    9. What happens if they tell you to stop and you don’t stop?
      1. They can sue you
      2. They can take the money you made from using the away
      3. They can make you pay their attorney fees
    10. There is something called the “Co-Existence Agreement” where you can make a compromise.
  3. A foot doctor and chiropractor wanting to offer a no-brainer. 1st exam and adjustment is free.
    1. It can be against the law. Anything that is in the medical field and you deal with federally funded groups then it can get confusing. They all have slightly different rules about free services, insurance, co-pays
    2. You should really research the state and federal rules. Find out what you need to do to make it happen. Find out if you need a disclaimer.
  4. A restoration company wants to know if, as a no-brainer, they can pay someone’s deductible or pay part of someone’s deductible for a restoration job.


Business Coach | Ask Clay & Z Anything

Audio Transcription

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Doctor Z on today’s show, we have a very special guest. He is an attorney at ball by the name of Mr Wes Carter. You got your Info says right on the end. I’ve been spitting off the weekend practicing putting my a the right. It’s right in Faustus syllable. You’re doing a great job by the way. I appreciate that. And why do you always start to show with four yeses? Have you noticed that it has to do with the equity, the quattro? Is that, is that the, there’s something about the aluminum is a part of your illuminati group that, is it too bright? Yeah. I joined last Thursday. I really need organization. We had to change up certain worldviews, but now I’m in charge of, I’d have a no, I don’t have a clairvoyants five too many and three on enough. In the future we’re going to have Wes Carter on the show West Carter. How are you sir?

Amazing. How are you?

Well, Wes Carter, I’m excited to ask you some questions here because does he, have you ever hired an attorney? Yes. Typically what do they do? They charge you like 100 bucks an hour. They normally pay me because there’s so get out of here. They’re great guys. I say, you know what? You’re so pleasurable to work with. All my other clients is a good attorney. But you charge you, I mean attorney fees that I’ve paid for range anywhere from say two 50 to four 50 an hour. An hour. Okay. Now we have one thriver here who’s got a, a little bit of a bad situation. Now, no point is, was uh, our, his answer is going to take the place of you hiring an attorney, but Wes Carterhere is the scenario from a real thriver this week. Okay. His guys in Houston and his company, Z, I cannot mention the name of his company on the air, but he’s been operating as such and such custom builders.

There’s a name of a company, he’s been operating under that name for years, years. And he got a call from a large commercial builder in the same city of Houston who sent him a letter December of 2018 so earlier this year. We’re now in March and it says you need to stop using our name now. This company’s a very large company in Houston. And so they reached out to the attorney, their attorney, they’re like, what do we do? And the attorney’s like, well, the very least you got to turn off your retargeting ads right now, uh, to try to avoid going to court. Well, it’s not just about retargeting ads. I mean, they are literally being told as Z that they can no longer use that name. Right. So Z, imagine that you saw an optometrist and Tulsa running his company called Z’s optometry. How long would you let that go on before you’d stop that? I could, I can I, can I stop him? And they said Zs, optometry,

the test is confusingly similar to your name and he got rights in the name.

I’m computing, let’s say Wes Carter, that somebody out there has a company that is registered. What do we, what does it mean to have registered your name? Is that a copyright or a trademark? Some of our listeners want to know,

well, let me get my spiel here before we get started. As you mentioned, you know, just our discussion of legal issues, no matter how awesome the radio show and podcast turns out to be today is not going to take the place of good confident by soap. Please do your homework, go find a good attorney that can advise you on your specific circumstances. So that’s always my still, I want to tell our listeners a trademark is what it’s called when we’re dealing with the name of the business. So copyright are artistic, you know, expressions, music, art, know art, pictures, video. We’ve talked about brandy and you’re talking about trademarks.

So if, if another company has the name trademarked and they’re just now discovering that I am using their name as my company name and we’re in the same industry. One Guy, this one guy, uh, the, the thriver is a, is a small residential home builder, custom builder and the other companies, a big commercial builder. What has to happen?

Well, a few things out of here. If someone were to come to me, a few things I’d be looking at at the very beginning are one, let’s make sure they actually have it registered as a trademark. Sometimes you get a cease and desist letter, someone’s found out you’re using the name is too close for comfort and they go file an application but they don’t really have that name registered. It’s something close. Or even though they’re a large old business, they’ve never registered themselves. So you want to, you know, trust but verify that they actually have what they say they have. Um, and then really it’s going to come down to if you have a registration who was using it first. Um, and sometimes you even have a defense that you knew about this and he waited too long to stop me. So they’ve not automatically an open and shut case just because you get a cease and desist letter from a big company. But it’s certainly nothing you want to ignore.

Now, if, if somebody already sent you a cease and desist letter and did you decide to just continue going, seize and desist, you’re just continuing to go. I mean this is, this is in December z. This letter got sent here in March. That’s right. December, January, February, March. We’re four months in. What happens if the big company wins and they have, you know, they have the name, they’ve trademarked the name and you have to stop but you don’t stop what happens.

They can sue you and it’s going to be usually federal litigation, which is even more complicated. Your Normal State Court litigation and then they can get all kinds of damages. You know, their actual damages, what it’s cost them. They can all be called this gorge. You have your profits, meaning take the money away that you’ve already made from using the name. Uh, there’s other damages that they can ask for and in some cases they can even ask you to pay their attorney’s fees.

Would you say, hey buddy, we need to move beyond the, hey, let’s just explore this lightly. This is a, is this a serious situation was

absolutely, I mean it’s not just from a money damages standpoint, but I don’t know, you’d have to figure this is affecting the health of your entire business. If you have to rebrand to protect your business, that’s not something you want to put off. So it’s time to deep dive and really figure out exactly what the facts are or how much risk you have. Do you have any kinds of the defense and if not, uh, even sometimes people complain because we’re not really in the same type of business, but it’s close enough that I’m worried about it. And there’s something called, there’s something called the coexistence agreements where we say, look, I’ll let you keep doing what you’re doing as long as we can come to put some guard rails on it. And so sometimes that’s an option as well as opposed to just stop it. You stop him the name. I’m using the name completely. So you really need to find someone who’s familiar with this area of law because there’s a lot of options on the table and a lot of moving parts. You need to figure out

where’s another thriver is interviewing candidates and z at the end of the interview, he, you know, definitely doesn’t want to hire the person on the other side of the table. Okay. So the person says, my hired and he goes, I’ll let you know tomorrow morning if it’s a good fit. If it’s a good fit, I’ll call you tomorrow. Well then the candidate reaches out via email and says, am I a good fit and persists. Does the employer who is conducting the interview, are they required by law to tell a candidate whether they are going to hire them or not and why?

You’re not required to tell them yes or no. Although I think it’s probably a good practice to at least tell them you’re not getting hired. Um, or you know, just a kind short, you know, thank you. But it’s not a good fit right now. But, uh, there’s nothing that requires you to tell them what you’re basing that decision on. So, you know, anything you say can and will be used against you. So you know, you’re not required to give them a specific reason why you’ve made that decision.

So you couldn’t say inZ , Z, you tell me if this sounds probable. Okay. And tell me if this is okay to send some from your and your non legal opinion in west you can one up, uh, doctors, uh, here, I could look at a candidate and say, uh, Bernie, you’re just too old. You know what I mean? You’re just, you’re, how old are you at like 89, 97 attorney. Really, Bernie, come on, Bernie. You can’t bring those ticket where the tennis balls on that Walker. You can’t, you’re just not my kind of fit. You know what I mean? You’re too old. You can’t do that. You can’t do that. No one else can you do that? Can you tell someone they’re too old?

I would advise against it.

Could you look across it at a younger Bernie? You know, Bernie Bernie’s grandson, he’s 28. Nice degree. University of Texas. Whatever you say. You say, Bernie, you’re just too white. You know what I mean? I’m tired of it. Yeah, you’re too pale. I need, I need some diversity. I need some diversity, diversity day every day in my office. And you’re too pale. Can you say that?

I think I would stay away from that.

So, and you couldn’t tell us when they’re too white, right?

No, I mean this isn’t just this part of the problem. If you have someone giving feedback, it doesn’t understand the nuances of the law and what my, they’re stepping on an oculus or funded comment to them gets twisted and turned into, uh, something that you get sued for later on.

So it’s better just to let somebody know, hey, I appreciate your time. You’re not a good fit. Or Hey, if we’ll keep your resume on file and if we have an opening later, we’ll reach out to you. What was, it’s better just not to, you know, throw out, hey, I don’t like you. That’s why we’re not hiring you tonight.


Right. Even for reasons that aren’t illegal. Like I just don’t like you, you know, that doesn’t add any, that doesn’t, maybe you can’t get sued for that. But what does that add to the conversation? I mean, you know, if anything, if you’re going to give any feedback it would to be to create some goodwill with that person ongoing. You know, they don’t go out and talk bad about the company. Um, but you know, my best advice is always just keep it short and sweet and you know, it’s not a good fit. We’re just not going to make a move right now. You know, like you said, we’ll keep your application on file. Something else pops up and you know, we’ll keep you in mind.

Don’t go died on me. Bernie thriver out there who’s a chiropractor and this guy’s a chiropractor. He says, I have always done my first exam consultation and x ray for free cause he, that’s his move. That’s his move first ray first exam, first adjustment is is free. Can somebody do that west or is that against the law?


well it can be against or can, you know, it can be against the wall and it’s when it’s one of those areas. Anything that’s in the medical area in doctors, and you can probably speak to this as well. You know, when we start doing with federally funded insurance programs and private insurance contracts, um, you know, there’s specific rules you have to follow under state law, federal law, and then every profession has its own professionals, whether that’s under the American Medical Association or the American Chiropractic Association where they have kind of professional ethical rules. And so they all have slightly different rules as to three services, waiving copays. Um, you know, issues that you get into with insurance companies, Medicaid, are you going to bill the insurance company for that free visits? You know, is it a free visit just for people you don’t have a relationship with? Is this an ongoing practice because, uh, any, any, anytime we’re dealing with medical payments, um, there’s just, it’s so regulated at the federal and state level and then you have contracts with the private insurance company that you have to abide by their contracts and anytime you run a foul of those, um, I mean it’s, it’s easy to get the feds on you for either what they call a false claims act or violating and anti kickback role unintentionally that it’s very important when you start offering those no brainers in the medical field that you really researched the state rules, your professional rules and the federal rules and determining, you know, like an offer this to everyone.

Is it going to be just for private insurance? Is that, you know, I need to put a disclaimer on there. This doesn’t apply to federal insurance. Um, and then he would, things like x rays and specific services, you need to look at maybe putting a disclaimer on there that, you know, if it’s medically necessary. I mean, maybe with a chiropractor is not a great example, but you know, if, if he says, Hey, I’m going to give everybody a discount on a specific lasik surgery, um, and they come in and they don’t qualify that because their eyes, you know, aren’t the right type or have a problem that doesn’t fit that specific surgery. And then you try to upsell them to a difference, you know, medical service, there’s problems there with it might be misleading or false advertising. So, um, you know, it’s just a long winded way of saying that it really depends on the circumstances. You really have to be careful of that situation.

No worries. I experienced that first hand. I had the board of optometry here in Oklahoma, reach out and contact me and try to rough me up. Um, my doing my, my specials at the time, I was doing a two pair of deal for $99 and they were wrapping me up over it and they said, well we’ll, and then they ended the one letter email to me saying, well, we’re gonna, we’re gonna make sure that all the insurance companies and the federal federal insurance plans, everybody knows what your pricing is.

Well, you could have two businesses way again. And they said, we’re going to make you too. You can’t refuse to let Tracy know me. You’ll never offered this deal again. Talk to Zooey Boyd is shut your damn cat boy, you’ll be sleeping with the fishes. I tell you what, he saw, you crossed us, you’ll be, you’ll be calling west caught him and tell him that you’re dead. So let me, I signed it. Godfather.

Well, what happened was is I did, so I did a little research and I found out that in Oklahoma and optometry, okay, a coupon driven deal for any kind of services or goods yup. Does not. And I repeat does not then set your price

in on all your normal goods ins or come on now. So I just made sure everybody came in at and keep one easy fix. Easy peasy.

So anyway, I don’t know about that. Right.

Hey guys, speaking illegal hereWes Carter respect your time and they have a hard out. We’ve got to we a heart in here with an interview in just a second. I have one final question for you here. We have a thriver out there has a restoration company in Denver, Colorado and they want to know can they pay someone’s deductible or part of someone’s deductible? Rocky has a no brainer for a restoration job.


it’s possible. It used to be pretty common, uh, a number of years ago and the state tried to crack down on that practice a little bit and it depends on how you’re doing it. What happens commonly is it, um, the way they live the deductible or I’ll pay your deductible or you hit a lot of the roofing industry is what you will, you shouldn’t be doing is fitting to the insurance company, you know, unscrupulous providers, which of course is your drivers would ever be, uh, we’ll make an invoice to the insurance company. The insurance company will, you know, take off the deductible and they’ll do some sort of change order to change the price so that at the end of the day they get all of their money and the customer never actually pay the deductible to the contractor. So, you know, states have started cracking down on that a little bit. Um, and again, we get into insurance contracts and uh, but it may be possible, but it’s definitely something that they’re going to want to do some research on because it can vary from state to state. There’s a lot of your insurance laws are, are, are different in each state. And it, if it’s any way where you’re, you’re fiddling with numbers with your insurance in voices, then that’s not something you want to be doing.

Okay. Now, where’s everybody out there saying, I want to get ahold of you to learn more, to continue the conversation? What does that look like?

Yeah. If you want to reach out to me, you can go to our website winners, it’s winters or call us at (918) 494-6868

Wes Carter, I appreciate you for joining us. If you’re out there today and you are looking for an attorney, I invite you to check out my attorney, winter’s that’s winters, Wes, thank you my friend, and we’re going to let you hang up on us.

All right, have a great day.

Take care, boss. Take care of, and we like to end each and every show with a boo.


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