Join Us In Italy!*
[00:00:00] Thank you to our sponsor, LiveFlow
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[00:00:23] Preview
Billy: And so, David Barrett, if you're listening, this is your chance to make it right. 95% of cases settle pretrial. And if you haven't finished that 100-person list, it wouldn't hurt you add two more. Well, I'm not saying- I'm not saying that you're gonna get sued, but I am gonna say that Luca Brasi sleeps with the fishes. That's what I'm gonna say.
[00:00:56] Introduction and what this episode will cover
David Leary: Coming to you weekly from the OnPay recording studio, this is The Cloud Accounting Podcast.
Blake: Welcome to another episode of The Cloud Accounting Podcast. I'm Blake Oliver.
David: And I'm David Leary.
Blake: David, I was expecting to have a very relaxing week. I looked at my calendar at the beginning of the week, on Sunday, and I saw I don't have a lot of meetings. I'm gonna be heads down, I'm gonna get a lot of work done. And then I got a text from you.
David: Yeah, like 12 o'clock noon, 12:01.
Blake: Was this on Monday that you texted me?
David: On Monday, and I said, “Hey, you get invited to ExpensiCon?
Blake: And-
David: And you replied back a bunch of has. Like, ha ha ha, like I was playing a joke on you. And then I sent you a photo of my computer screen. I said, “I did,” of the email I just got. And I said, “I did,” unless it's a trick to drive traffic ‘cause everyone got “You are invited.” It's exciting. Like, we went to the first ExpensiCon that was in Maui in 2016.
Blake: ExpensiCon is an invite-only conference for accountants and influencers in the Accounting profession, put on by the expense management company, Expensify. It's this crazy idea that they had years ago to do this, to pay everybody to go to Maui in their first year.
David: They bring in like the top 100 people they think are thought leaders or influencers or whatever it's called. And then to paint a picture for the listeners to understand like how amazing this experience was. We got married in October of 2015. So, this is May of 2016.
Blake: Well, not you and me.
David: Me and my wife, not Blake and I. We went to Kona. We stayed at the four seasons. It was great. Amazing honeymoon. We never talk about our honeymoon. We only talk about Expensify, six months later.
Blake: Cause it was at a-
David: It was that amazing and epic.
Blake: -five-star resort. I think they had like half a day of actual sessions. The rest was just us getting to hang out and enjoy. And then that’s when-
David: And that’s the first time I met you face-to-face, Blake.
Blake: That is where we met. And you planted this- the seed of the idea in my head that we should do a podcast someday.
David: Three years later, we finally did. Or two years later, whatever it was. It took a long time, but we finally did a podcast. And then last year, they went to Borabora, which just leveled it up more. I didn't get to go. We didn't go- get- not last year, pre-COVID, whenever it is. ExpensiCon 2 was at Borabora.
Blake: We didn't get invited to that one.
David: It looked amazing. And so, there's definitely this FOMO. Like, you wanna go to ExpensiCon. So, when you get an email that says you're invited to ExpensiCon and it'll let you go from here, you get excited. I went and told my wife. I was like, “I got invited to ExpensiCon.” So, that's where we're at. Invited.
Blake: I didn't get the email right away You got it right away, and you sent me a screenshot and it has the headline, “Join us in Italy, all expenses paid at ExpensiCon.” It's from David Barrett, who is the CEO of Expensify. In traditional David Barrett fashion, it's like a long email. He tends to send like really long, interesting emails. I actually look forward to them. I think in a recent episode, “I actually said I haven't seen one in a while. I'm missing these,” right? ‘Cause the only-
David: And this is shorter than normal though. It's a lot shorter because there's a video in there. So, you take out the video, it's not that long of an email. Compared to Dave Barrett emails, it’s not very long at all.
Blake: They're very entertaining, right? He's a interesting guy. And so, I'm reading the screenshot. And by the way. I was out on the road. I was driving. So, I'm just sort of like paused at a stoplight, and I'm like trying to read this thing, right? Before the light changes, you know? I don't read text messages while I'm driving, just when I'm stopped.
David: And it wasn't even a screenshot. Like, I took a photo of my screen, which is the worst thing to do.
Blake: Oh yeah, such a boomer thing to do, right? So, David Barrett says, “It can be hard to look past the grim headlines that seem to pummel us daily, but beneath the bad news are some good trends. The worst of the pandemic is behind us. The markets have stabilized, and are recovering. Good days are on the horizon. And as we all scramble to stay afloat, it's easy to overlook the slow tectonic shift happening in the Accounting industry around us.
The age of the pre-accounting super app is dawning. And just like we did at previous moments of transformation, we're heralding this dawn by hosting our third ExpensiCon, and you're invited.” That's the first paragraph, and the “And you're invited,” is bold. And that's pretty much all I could see in the screenshot you sent me. And then there's like a video that you can watch. So, I got really excited because I thought, “Oh, if David's invited, then maybe I'll get invited.” But I checked my email and then I didn't have one. So, I started to get jealous like, right away.
David: That's what I thought. I was really invited.
Blake: Right. Yeah. Exactly.
David: I thought Blake got blacklisted or something. I was super excited.
Blake: So, I tell my wife. I tell her- I text her and I say, “David got invited to Expensify or ExpensiCon. I think I'm gonna get invited, and then if I don't get invited, I'm gonna be David's plus one.” You know, that was my plan. But I did get the email later. I got the email later and it was the same as yours. And I got- I was dancing around the house, you know? I'm like, “This is great. We made it. We got back.”
I called up Samantha, my wife, I told her, “We're going to ExpensiCon again.” And she was psyched because like you said, that trip, the first one, was amazing. Just incredible. And this one is in Italy. It's even better. So, they're doing it in Puglia, at the Borgo Egnazia. And I looked that up, you know? It’s a five-star.
David: That's in the heel, right? At the very tip of the heel, or?
Blake: Like Achilles tendon of Italy.
David: A little higher up in the heel. Okay.
Blake: So, I'm excited, I text my parents, I text her parents. This is a great start to my week, right? And then my father-in-law reads the whole email, and then he clicks on a link in the email. There's a link to a website for ExpensiCon. It's the same link that the where the video is hosted, right? And if you scroll down that page, if you scroll down that page, you'll see there's like a form.
And the form says, “Join us for five days of connecting, community building, and getting shit done. Stay in the know, sign up for updates.” And you put in your name, your email. Are you a member of an Accounting firm? Yes, no, unsure. Unsure, that's kind of funny. And then tell us why you wanna come. So, he says to me and Samantha, he's like, “Was this really an invite? Like, what was this?” And that's when my stomach sinks. I realize, “Oh, shit.” I just told-
David: I realized- I got the email three times, four times. ‘Cause you know, back in the day, I was doing testing. And so, I have a lot of email addresses tied to Expensify. And when it started coming in multiple times, I was like, “Oh no, I guess I'm not really invited.”
Blake: So, then I had to like tell my wife that I may not actually have been invited. And she was so pissed. I cannot tell you, David. David, this is like my credibility is shot. Oh, by the way, we tweeted this out too on Twitter. I said, “The Cloud Accounting Podcast is going to ExpensiCon. Looking forward to my all-expenses-paid trip to Italy, courtesy of a personal invitation yesterday from David Barrett and Expensify.”
How did David Leary And I go about booking our flights? We got lots of likes. Anyway, so, that's where we are. I feel like an idiot. I mean, maybe I am an idiot, so it might be fair, right? You know, I also almost fell from an MLM scam once. This is something I tend to do. But something doesn't sit right with me about all this.
David: Before you go into that part, Expensify has an amazing ability to do something that's so- not- I wouldn't say off the rails, but so different than everybody else that it forces us to talk about it for 15, 20 minutes, a half hour. This happened when they ran a SuperBowl ad. This happens over, and over, and over again, where- ‘cause I've had apps, like, “Well, how do you talk about us in the show?” I 'm like, “Make news.” And they, good or bad, Expensify does just enough that it's really engaging, and then you have to have a conversation about it. And I'll let you go from there about the part that is unsettling.
Blake: Well, so, the thing that is unsettling to me is that like, I feel duped. I feel like this was not out of the realm of possibility, given that we have been invited. We have attended these in the past. Yeah, they skipped us one year but maybe they brought us back this year. Like, the idea that we could have been invited and this is the way that they would do it since the last one also was by email, like, seems-
David: The other piece of this that got left out is Expensify- a lot of companies or PR people will send us news before the news breaks. And if you agree to keep it embargoed in, we never say yes, like, usually, ‘cause I'd rather just get it live and learn about it when we record the show. I'd rather not get news ahead of time. But Blake replied, he's like, “Oh, are you gonna have The Cloud Accounting Podcast at this event?”
Blake: Oh, yeah, yeah, yeah. So, that's part we should listen to that too.
David: So, that was before this email ever went out, right?
Blake: Right. So, nine days ago we're recording on July 29th, and on July 20th, Rose from Expensify said, “Hi Blake, just letting you know that Expensify’s ExpensiCon, the world's only Accounting and fintech festival is back in Italy for 2023. And we're planning to release more info. If you'd like to have a sneak peek, let me know if you're good with the embargo, and I'll send the full announcement shortly. Thanks, Rose.” And we have a policy, you and me, David, that we don't- we generally don't agree to embargos. And so, I didn't.
David: Because I'd rather not get it. It's just, you know? I don’t know.
Blake: Yeah. And I'd rather react to it like live, when I can talk about it, rather than not be able to talk about it. And so, I replied to her, I said, “Just one question. Are you planning on inviting the number one podcast for accountants and bookkeepers in the world to broadcast live from ExpensiCon, Italy?” And she never replied. So, then when we got the invite, I thought, “Oh, it worked,” right?
David: Exactly. Exactly.
Blake: My comment like worked. So, that is- I think that's all the details. Like, the background of all this. I feel- I mean, I feel like an idiot, like more than- more of an idiot than usual this week. It was kind of rough. Like, my wife wasn't talking to me for a few days.
David: What?
Blake: Well, so- oh, here's more context. So, for our 10th wedding anniversary, we were supposed to go to Italy for like two weeks and COVID canceled all that. So, she, for like two years now, has wanted to go. And the idea that we could go to our like dream destination for free, it was more- too good to be true. And it turned out to be too good to be true. And so, something didn't sit right though with me. I mean, like personally, I'm like, yes, I'm an idiot, but also, like, shouldn't it have been more obvious?
Like, shouldn't something- like, something didn't feel right about this email. Because I've, as a- in a marketing role, I've participated in setting up contests where you give a prize to people, they fill out their information, and then you know, you select people to win. And this kind of feels that way, right? They're trying to do is get everybody to give them their email addresses, and then they'll select a hundred people, right?
David: And you have to do- like, there has to be a way for people to join the contest through like a postcard and all this other crazy stuff. I remember back in the day, for the Intuit developer team, we were giving out a prize to apps that built on the QuickBooks platform. And the way they technic- legally, the contest had to be ran, we had to have some note card for people to enter some drawing. And we had we had like eight real developers join and like 800 postcards from people in the Midwest that are on bulletin boards about contest entry.
Blake: The people who just have the time to fill out all the contests.
David: Yeah. Yeah.
[00:12:17] Thank you to our sponsor, Canopy
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[00:13:26] Welcome lawyer Billy DeClercq to the show
Blake: Okay.
David: Never again will I ruin a contest.
Blake: Right. Which is why you have to be careful, right? So, anyway, I'm not a lawyer. Are you a lawyer, David?
David: No, far from that.
Blake: No, you're not a lawyer, but we like to talk about this stuff. And I thought maybe, rather than speculate on this, we should get a real attorney on our show. And so, I have invited Billy DeClercq to join us today. Billy DeClercq, Esquire, welcome to the show.
Billy: Thanks for having me, Blake. It's a pleasure to be here.
Blake: Billy is a podcaster.
Billy: And I don't mind being your plus one on your way to Italy, by the way. But I don't know how that'll go over with your wife.
Blake: We'll have to negotiate that. Maybe my legal fees in exchange for that, right? You get a trip to Italy. So, Billy, you're a podcaster. And so, I figured, hey you'd be a great guest on our show. And you're also a legal mind. So, I forwarded you to this this email because you were the first person I thought of.
Billy: That's great.
Blake: ‘Cause I thought you’d also- I thought you'd also find it humorous, right? Tell- first of all, what- what's your show called that you do?
Billy: My show's called Laying Down The Law. It's a law and comedy podcast combining the two great tastes, sort of the peanut butter and chocolate of law and comedy. Doing two favorite things. And so, what we do is we take real law school textbook cases, the stuff that first year law students typically study. I invite improvisers, mostly with no legal background, and we dissect the cases. We whirl 'em around in the improv blender and then we see where we go. So, we're about to start releasing season three, which as a 3.0, is a major upgrade from season two, and we're- can we announce the other thing?
Blake: Yeah, go ahead.
Billy: Okay. Well, I am thrilled that we are actually doing special cuts for- specifically, for Earmark in order to offer continuing education credits to accountants. And so, we had to shorten the length down. We need to- I think we need to cut some of the material that we would ordinarily put on our stream, and make sure that we have-
Blake: To make it more educational? To make it more educational?
Billy: No, to make it less offensive. And then we have to hit the 39.2 minutes of actual legal content in order to qualify, because often, we don't reach 39.2 minutes of actual legal content in the legal law and comedy podcast. Sometimes, the comedy overshadows the law a little bit.
Blake: Well, I may have a solution ‘cause it's actually point of order 35.2 minutes.
Billy: Oh 35 point- oh, shoot. Well, we're gonna cut some four minutes of legal content out of the last 12 episodes in that case because the law is boring. Sometimes.
Blake: Well, but it's not. And actually, business law, my favorite, I gotta say, other than my Accounting classes, business law was like my favorite class that I took to get my CPA. Hands down. I loved it.
Billy: It's pretty interesting.
Blake: Because- well, ‘cause the law that we get to learn as CPAs is the basic business law. Which is actually the most interesting ‘cause it's the stuff that comes up the most, right? It's the stuff- and it's the stuff that your clients often fall victim to, and you know, contract law, and partnership law. That's why I'm really happy that we're working together on bringing Laying Down The Law to Earmark CPE so accountants can earn CPE for studying business law on a podcast, which like is also entertaining
Billy: Me too. Yeah, can we actually shamelessly promote a couple other things? Because-
Blake: Yeah, yeah. go ahead.
Billy: Yeah. Well, first of all, I wanna shamelessly promote FreshBooks although I'm using a different Accounting platform. First, for bringing us together. It was a really good platform for me for where I was at the time. And that's how I met Blake, and Blake then, you know, became a bookkeeper for me, and then you became a client, right? When you launched your first firm.
Blake: I was your client and you were my client. Yeah.
Billy: Yeah, exactly. And then you invited me to XeroCon, which is what got me on Twitter, and it's the reason for my Twitter handle, at Max Headroom Esquire. And then there's like lots of intersecting lines but the reason I thought of this is because I had you on one of my early podcast episodes. ‘Cause I was like super impressed with The Cloud Accounting Podcast. You guys were kicking ass and I was like, “Wow, I wanna be like Blake.”
And I asked you about your background because you have- as many people probably know- you have a degree in cello performance. And, you know, not everybody sees a connection between cello performance and Accounting. But being an actor, improviser, and lawyer, I do. And that, your answer, really stuck with me because what you said was, “What I find is that by being an Accountant and by exploring, you know, the finance aspect of things, I actually can use a lot more creativity than I would if I was playing Pachelbel's Canon every weekend at weddings.
And so, I think that's the reason why business law was so appealing to you. Because when I was growing up, we would play monopoly a lot. And the thing about monopoly, is it has rules, and then it has bending the rules. Like, the free parking thing is not a rule. You know, the free parking thing, like if you have to put money into the in like community chess, like, it says pay in certain amount of money or you get a whatever, people- we used to-
Blake: Leave it in the middle.
Billy: Yeah, people would leave it in the middle. And then if you land on free parking, you got that. Well, that's not part of the official monopoly rules. That's just a tradition that people have developed over many years of playing monopoly. And my dad, being in real estate, was so obnoxious to play monopoly with. Sorry, dad, if you're listening to this but, you know, it's a well-established fact.
But you know, because he would start trying to bargain with you. Like, the minute you got a piece of property, he's like, “I'll buy it from you.” And he is like- and so, there's all this side transaction and negotiation going on within the rules of the game. And that's what's exciting about the law. And that's what's interesting about the law, for so many people, is that it's just the rules of the game. It's just knowing what the rules of the road are, and then how you work with it is rules within rules, within exceptions of rules.
And that whole structure can actually be a lot of fun and really interesting. And the more you know about the rules, the more fun you can have, because every rule has an exception, and every exception has an exception to the exception, and every exception to the exception to the exception has another rule.
Blake: Fun right?
Billy: So, listen to Laying Down The Law everywhere you get your podcasts.
[00:19:46] Billy breaks down Expensify email
Blake: So, Billy, give us a- well, I know this isn't how you do your show, but let's dissect this email from Expensify as something of a case study. Or let's just talk about it because I feel like a fool. I feel like though, you know, perhaps I've been made a fool. And so, I'm wondering if you can, you know, help me understand, like- I felt like I got an invite, personally.
Billy: Well, I think you did too. And I think that Expensify did not vet this with their legal team before they sent it out.
Blake: Really? What makes you think that?
Billy: Yeah. Oh, yeah, I think so. Well, there's a couple of reasons. First of all, this is- brings in a core concept from first year contracts law. And I'll go ahead and just warp this a little bit to make it like my podcast because, you know, why not, right?
Blake: Yeah, please. But do we have to like put a disclaimer on here that you're not giving legal advice? Or like-
Billy: Yeah, sure. Let's do that. This isn’t actual legal advice. Your circumstances may vary. Not actual size, void where prohibited, batteries not included, enlarge to show texture.
Blake: Got it.
Billy: We good? Okay.
Blake: Yeah, we're good.
[00:20:48] Concept of consideration
Billy: Okay, cool. So, this is the concept of consideration, and this type of scenario actually does come up in contracts 101. Because the concept of consideration is the basic form of all contracts, whether they are a written contract or an oral contract. Or sometimes, contracts are partly written and partly oral but the core essence of a contract is a bargained for exchange.
Blake: A bargain for exchange.
Billy: A bargain for exchange. So, for example, if I say, you know, come over to my house and I'll give you my dog, well there is consideration- there can be consideration because you have taken the trip to my house. And that's a- it could be a concept called promissory estoppel, that you did something in reliance on a promise. And so, the promise is therefore binding. So, this was- this email wet my chops because it says you're invited. In bold too.
Blake: With an exclamation point. It's the first thing I saw when I read the email.
Billy: Mm-hmm. And it- you know, there is consideration potentially, here, because of the fact that you are being asked to go to Italy to hear a presentation. Which to me, having gone to many, you know, weekend timeshare presentations myself, growing up, you know, you get a free weekend in Lake Berryessa provided you sit through four hours of a presentation. Maybe even you get a toaster, with the understanding that, you know, you tour the facility and in exchange, you know, you get two or three nights in a lodge or whatever.
So, this situation of consideration and the sweepstakes rule, which is an issue where if you don't make the right kinds of disclaimers and disclosures you are potentially creating a consideration situation. Where most of the time, you'll see if there's some kind of a sweepstakes, it'll say ‘void where prohibited’ and it'll also say that you can participate in the sweepstakes, like the example of the, you know, the McDonald's monopoly. Everything always loops. Everything touches everything.
But the McDonald's monopoly sweepstakes, you know, you can always get a monopoly game piece without actually buying something. They- usually, they make it hard, “Send a self-addressed stamped envelope to Poughkeepsie and, you know, we'll send you back a game piece,” which, you know, the game piece is worth less than the stamp, but you can participate for free.
Blake: And is that because otherwise, if the purchase is required, it would be like a lottery, and a gambling?
Billy: It’s gambling, yeah.
Blake: Gambling. Okay. So, anytime you run a contest, generally, you can't charge people money for it.
Billy: Right. And so, there are many, many rules about what consideration can be, and how you can form a contract. And so, my advice to you, Blake, was I said, just reply ‘I accept.’
Blake: Which I did. I took my- I took the legal advice and I replied ‘offer accepted.’ I didn't hear anything back.
Billy: Right. Because to form a contract, you need you need an offer, and you need acceptance of the offer. And so, to me, I see this as a firm offer. The offer is if you come to Italy and listen to our presentation, you know, we'll pay all your expenses to get there. So, I don't think it was carefully vetted, honestly, because there are some risks in writing an email like this with no disclaimers and no disclosures, and you got a link on another page. Like, they could have had one sentence that says, “You know, you're not actually invited, this is a contest or this is a-” it's clear, it's written as an invitation.
David: You’re invited to apply. You're invited to apply.
Blake: Right. You're invited to apply, would have been what I would personally have written if I were doing something like this.
Billy: It's highly misleading and they're- I mean, you know, Blake, if you want, you know, if you wanna- I don't do contingency cases anymore, but if you wanted to take this on a contingency, you know, it might be an interesting case.
Blake: And the contingency being you're my plus one?
Billy: Well, I'd have to run into the same problem as you, Blake, which is that, you know, I'm also married and I also would run some risks if I was like, “Oh, by the way, sweetheart, I'm going to Italy with Blake.” She'd be like, “Well, I hope you plan on living with Blake after you get back.”
David: Just tell your wife, accountants are the best kissers. It’d be fun.
Blake: Oh yeah, that was the title of our latest episode.
David: We learned that last week.
Billy: When I was prepping, I noticed that and I thought, “Oh,” and you just went ahead and put in a dig that lawyers are the worst. So, yeah. No, I know that's why because, you know, lawyers, they're gonna, you know, they're gonna kiss you and then they're gonna send you a bill That's a 0.6 right there.
[00:25:27] Thank you to our sponsor, LiveFlow
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[00:26:47] Looking at Expensify's side
Blake: Now, I don't wanna make this all one-sided because we've been accused in our show of being one-sided with issues. So, I wanna like, take the other position, right? Which is, if you go to the bottom of the email, like, if you read all the way through, you'll see that there's like an unsubscribe link. It says, you know, ‘to unsubscribe, please click here.’ And so, that indicates, oh, this is a mass email.
Billy: Yeah, that's a different law. The unsubscribe link, that's the canned spam act. So, you have to do that.
Blake: Now, I also-
Billy: I actually had another similar point. Go ahead.
Blake: Well, I also didn't click on the link. That like- so, ExpensiCon is underlined and I don't think it was highlight like blue- you know, how some links are blue. It was underlined. And then if you click on it, which is what my father-in-law did, and I didn't, and you scrolled down the page- it's not up at the top, it's at the bottom. Like, you have to scroll, that's where you see this form that says like, submit. But interestingly, the form itself doesn't say like, apply. So, anyway, I just wanted to like point that out. That's what was suspicious about it, and made my family say, “Blake, I think you’re wrong.”
David: Well, I thought that form was for the people that didn't actually get invited yet.
Billy: Right. ‘Cause that's a public website. So, I think the inference could go the other way. The other thing too, to point out to, you know, to the unsubscribed link, there's a stronger indication that this is not a contest, and that it is an invitation which is two lines above the unsubscribed link, or three lines above, which is the PS. The PS says, “Remember that Tesla contest for approved accountants? We have a winner. Learn how Casey from Air CFO won a shiny new Tesla.”
Which I did watch the video, and it was a lot of- it was actually hilarious because there was a lot of pictures of Tesla, and then talking about Expensify over the- you know, like close up shots of a Tesla. And I'm like, you know, it just was, it was kind of funny. But that leads to the inference I would argue. The inference that they're mentioning another contest within the email would lend one to believe that this one isn't a contest, I would argue, right?
Not only that, but to my point about consideration, I would argue that this is presenting a contract involving consideration. And this is underneath the five bullet points. You know, he's talking about, you know, about the different ages of expense- expensing and whatever. He says, “Not sure what that means? Well, come to ExpensiCon to find out. Learn why every vendor in your Accounting tech stack, not just Expensify, will gradually consolidate, blobity, blobity, blah. Hear my candid- irreverence crossed out- candid take on all the players, and how they stack up. listen to top industry blah, blah, blah.” So, Expensify is basically saying, “You're gonna have to listen to us talk.”
Which, you know, I have not heard David Barrett talk, except for on the- I think that was him on the Tesla thing talking. But you know, one might argue that having to listen to somebody talk about their expense categorization app that they're trying to sell you is a form of consideration because you are being asked to give your time, just like the person who is going to hear a timeshare presentation, right? The consideration is you come to Italy. And they could have had it like in, you know, San Jose, but they say, “Come to Italy and listen to us talk about our app.”
Blake: And my time-
Billy: Mm-hmm, and your time is worth money. I mean what you-
Blake: It literally is worth money.
Billy: It is worth money. You charge it by the hour and you spend, you know, I don't know how long it takes to put together a Cloud Accounting Podcast episode, but that is a highly valuable endeavor and you're not gonna be able to do those things because you're gonna be on an airplane. You're gonna be, you know- apparently from this photo, you're gonna be driving a Roadster through the Italian countryside. And I don't know what all you're gonna be doing but that's your time. That time is money, man. And even if it's in Italy, you know, it's very hot there right now, you know?
Blake: I might have to buy a new outfit.
Billy: So, you're gonna have to- you're gonna have to buy a lot of linen shirts and Ferragamo shoes.
Blake: Italian men don't wear shorts unless they're at the beach. So, I have to buy pants. I don’t know.
Billy: You're gonna have to buy pants.
[00:31:01] Looking at other similar cases
Billy: Exactly. You have to prep for this trip. So, I also sent you- I sent you a contract case and I looked up a couple more consideration cases because on Laying Down The Law, what we do is we'll present a case and then we'll debate the case. Here, we have a real-life case that we're debating. But I'd argue there's consideration here. A good example here is a case called Chapel versus Nestle from 1959.
Blake: Like Nestle the chocolate milk maker?
Billy: Mm-hmm, yeah, the chocolate company. So, Nestle was- had an offer where members of the public could get a music record, and all they needed to do was send three chocolate bar wrappers plus a little bit of money. And Chapel-
Blake: And when was this?
Billy: This is 1959.
Blake: Okay. The Golden Age.
Billy: The copyright to the records was owned by Chapel or Chappelle, I'm not sure. I don't think it's Dave Chappelle, but they- there was claim that there was a copyright breach because Nestle was selling the record. And so, the case basically, depended on the question of whether three chocolate bar wrappers were part of the consideration, and it was found that they were, even though you typically throw away a wrapper. But that was considered- that was described as a form of consideration, even a chocolate bar wrapper-
They say in the law school textbook, even a pepper corn, literally like, you know, just a little piece of pepper can be consideration.
Blake: So, consideration is something that I give to somebody else in exchange for something.
Billy: Correct. So, the idea of consideration, when you're talking about the bargain for exchange, consideration is the part of the exchange- is the- is what's being exchanged. So, you know, I could say, you know, “I'll sell you my dog for $5 or I'll sell you my dog if you water my plants,” or- I don't know why I'm trying to give away my dog. My dog's very cute but-
Blake: I am actually looking for a dog, so. Don’t accident-
[00:32:56] What is a gratuitous promise?
Billy: Well, we've got a dog, you know, you just have to feed her and give her a good home. And so, a lot of cases, especially in these law school textbook cases, turn on the question of whether something is a gratuitous promise, or an offer to exchange of value. Because the contract can be- it gets into, what's a promise?
Blake: Right. So, a promise- let me see if I get this right. A promise is where I just say I'll do something but you don't have to do anything in exchange.
Billy: That- so, that's a gratuitous promise. Everybody knows what gratuitous means, right? It's a promise with no- there's no consideration. So, if I say, you know, “Blake, I'm gonna wash your car.” I don't ask you to do anything, I'm just, “I'm gonna come over, I'm gonna wash your car.” And you're like, “All right, I guess so.”
Blake: I'm like, “Yes, Billy's gonna come wash my car.” Like, I'm super excited.
Billy: Unless you've seen me wash a car, in which case you might be a little worried, but yeah.
Blake: It really does need a wash right now, so.
Billy: Yeah, it's a gratuitous promise. In other words, there's no consideration on your part. You're not doing anything, your car's just sitting there. You're getting the benefit. You're not, you know, if you're a lawyer, you're gonna argue well, it's not a gratuitous promise because I am giving Billy the opportunity to wash my car. And since my car is really-
Blake: I moved it from the garage into the driveway.
Billy: That's a- yeah, exactly. You relied on my promise. You took action in a detrimental reliance. Because, you know, otherwise, you know, it would've been in the garage and not getting more dusty. You moved it outside in reliance.
Blake: So, this one will- was not gratuitous. If we're saying that this is a promise, alright? This email.
Billy: Going back to Expensify?
Blake: Yeah.
Billy: Okay. So, I think they would probably defend themselves by saying this is a gratuitous promise. It's not a bargain for exchange. So, taking a- kind of a layered approach to the idea of a contract. A contract is a bargained for exchange for value, right? So, the consideration part is the value part, but then you take another layer on top of it, it can be an exchange of promises. So, and most contracts actually do take the form of promises. You know, like an insurance contract is, you know, I promise to pay this monthly premium and you promise to, you know, deny my claims when something bad happens to me.
Blake: Got it. Yeah, exactly.
Billy: So- sorry, I just, I always like to take a dump on insurance companies whenever I can because they're big. They can take it. So, here, the exchange we're talking- that I would argue is not an exchange of a pepper corn rather, but an exchange of promises. They're inviting you to come to Italy. You're promising to take the time to listen to them talk about their special little credit card.
And so, you are- you're agreeing to take the time to listen to their presentation and presumably, they hope that you're going to talk about it on your podcast, which they apparently got for nothing. Unless we go back and bleep the name of the company. We could do that. Oh, I'm, you know, but they're taking your time.
Blake: Yeah, Well, and what about like the fact that I told my family-
[00:36:07] No emotional damage but detrimental reliance
Blake: -and I tweeted this? Like, we relied upon-
David: Like emotional damage?
Billy: Mm-hmm. Yeah, well, detrimental- and so, detrimental- well, good point, David. Actually- so, you don't get emotional distress damages in breach of contract cases because we don't want- it's a policy of the law question. You get emotional distress damages in the case of personal injury, Tort cases, because we don't want people- you know, might hurt your feelings that someone breached your contract, but it leads to all other kinds of policy reasons why you shouldn't, generally.
David: Makes sense.
Billy: But there is some, you know, what's called detrimental reliance. So, there's a concept called promissory Estoppel. Promissory Estoppel is a replacement for consideration when the person who's being charged with a formation of a contract tries to deny the existence of a contract, as probably Expensify would if you were to sue them. I'm not offering my services to do so because, as I mentioned, I'm getting away from contingency cases.
But Promissory estoppel says if you take steps in detrimental reliance upon the representation of a promise, then the contract can be held to have been formed, even though the person promising, in this case, Expensify, didn't necessarily intend to form a contract. So, you tweeted about it, which is potentially embarrassing. Talking to your family might be harder but, you know, they got all kinds of free publicity out of it.
Blake: I mean it could have caused damage to my marriage. Like, you know?
Billy: It could have. It could have. And you know, I don't have a degree in psychology, but sometimes, I think I need one as a lawyer. But you have, I think, like millions of Twitter followers, and tens of millions of listeners to The Cloud Accounting Podcast. So, they're getting all this publicity by promising you something you detrimentally relied. You used your platform, which is very, very large, to promote this product, and-
David: Well, they arguably asked us to when they sent us the press release under the embargo. I mean, it's kind of- that's basically, you send press releases, I don’t know, to media people to get them to talk about your thing. To talk about ExpensiCon.
Blake: Right.
Billy: That's right. And so, David Barrett, if you're listening, this is your chance to make it right. 95% of cases settle pretrial. And if you haven't finished that 100-person list, it wouldn't hurt you add two more. Well, I'm not saying- I'm not saying that you're gonna get sued, but I am gonna say that Luca Brasi sleeps with the fishes. That's what I'm gonna say.
[00:38:52] Thank you to our sponsor, Liscio
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[00:40:05] Hopefully, CAP is invited in an ideal world
Blake: So, in an ideal world, we already are invited. We're on that list.
Billy: Oh, absolutely.
Blake: And we look forward to attending. But in a less ideal world, there is the possibility that we could- The cloud Accounting Podcast, or we, as individuals, or anyone, honestly, who received this email, could potentially compel Expensify to bring them along.
Billy: I mean, you know, there could be some lawyers out there that aren't as busy, that could make a lot of trouble for them with this. It's not clear whether this is supposed to be a contest, or an invitation to apply, or whether this is, you know, just an announcement of something that- it very much sounds as though you've been- you're one of a hundred people that's been invited to something that's part of a promotion, right? It's clear it's promotional for them.
Blake: Yeah. That was a given.
Billy: But they describing you as a Titan of the Accounting industry, and frankly, I think that's probably a fair description.
Blake: I mean, I, you know, I refer to myself when I introduce myself at cocktail parties as a Titan of the Accounting industry.
[00:41:21] What are some rules of thumbs people should keep in mind when throwing "contests"
David: All right. So, to rewind. Yeah, so, Billy, we- our listeners, obviously, a lot of accountants and bookkeepers, but we also have app developers that can- you know, app developers just like Expensify. And lots of people do contests. We were like, “Hey, we'll send you to this conference. We're gonna give you a conference ticket to go to the next QuickBooks Connect Conference, whatever it might be. What's kind of like, just two or three small rules of thumb people should keep in mind if they're gonna run a contest. Even if you're an Accountant or you got an Accounting firm, you're gonna do a contest for your clients.
Blake: Or your clients ask you, like, “Hey, I wanna do this, and I don't wanna call my lawyer ‘cause he's gonna bill me, and I know you’re nice.”
David: Yes. They will ask the Accountant this first because it's cheaper. Yes.
Billy: Mm-hmm. Well, here's the- so, here's the thing, is that you need those disclaimers. I mean, we laugh because disclaimers are everywhere. Like now, right now, you go on a website and it's like- what I want someone to invent is the ‘I accept cookies’ app because like, every single time I log onto a website, it's like, do you accept the cookies? I'm like, “For fuck sake, of-” oh, sorry.
Every time I click on an app, I'm like, “For Pete's sake, I do accept the cookies. I just wanna read the news.” So, you need the disclaimers, right? You need to let people know. And here, I mean, David Barrett and team have clearly misled you. They've misled a lot of people and they've gotten a benefit out of it. And I think they put themselves in some potentially legal hot water.
[00:42:44] Draper James 2020 dress case study
Billy: So, here's another case. So, Reese Witherspoon's fashion line, Draper James, LLC, in 2020, had an Instagram giveaway post that said, “Draper James would like to give teachers a free dress.” It didn't go on to say that there was a registration form, and that the offer was only valid while supplies last. So, this is a even stronger- your case is even stronger than the Draper James case because there were some disclaimers, right?
After they published the post, thousands of teachers signed up believing they'd get a free dress. In fact, they were being entered in a sweepstakes to win one of 250 dresses. So, the teachers who didn't get a dress when on social media, and they were basically expressing their outrage, like, “Hey, I signed up for this mailing list. I signed up for this Draper James thing, and I got nothing.”
Ultimately, a class action was brought, and it settled in September of 2020. So, when you're engaged in promotional marketing like this, promotional marketing, you need those disclaimers. You need to make it clear. In this case, they're saying, you know, “We're gonna give you a free dress,” and they're putting it up on Instagram. All you need to do is be a teacher and sign up. They're not saying, you know, limited supplies, the first 250 people to apply, enlarge to show texture, batteries not included, consult your doctor, may not be available in your area, you know, the first seven rows are a splash zone, et cetera. Go ahead.
Blake: Did the teachers in the class action lawsuit, did they end up getting a dress? Do we know?
Billy: Well, I don't know. They got something. They probably got a coupon for a dress and the lawyers got millions, usually, is how class actions end up.
Blake: Yeah. Gotcha.
Billy: We've all been- we've all gotten something like, “Hey, restoration hardware harvested your ZIP code. Here's coupon for 12 cents.” And the class action notice says the lawyers got $20 million, like, “Wait a second.”
Blake: I got- I did one where I filled out a form for something. My email was on a list. It was like, I got a check for like a dollar.
David: Yeah.
Billy: I mean, it's the biggest racket around, right? I have my opinions and I'm very comfortable sharing them. But so, the point is that when you make an offer like this, and you make an offer to the public, you are expressing something that people taking- relying on it. So, if you are- first of all, you know, I'm very, very, very, very expensive. Let's just-
Blake: As to be expected. Your fame.
Billy: My fame, notoriety, you know, I'm basically, it's like David Boies, you know, Atticus Finch, and then me. But you could consult an attorney, I mean, you know, like 250 bucks, like, “Hey can you take a look at this, you know? Take a look at this email, make sure we're not running afoul of anything. Do we have the appropriate disclaimers?” But also, just like common sense. You don't intentionally mislead people. I'm- you know, I'm gonna put that up in front of a jury, okay, of 12 people who are either unlucky or not smart enough to get out of jury duty, and, or- some people actually like being in a jury.
And by the way, it's an awesome experience if you ever do it, but I'm gonna show this email to 12 people who are gonna say, “Yeah, it pretty much looks like you're being invited to Italy.” And they're gonna decide whether you were made a promise, and whether this- they were then obliged to fly you to Italy. They didn't say, “We're flying a hundred people, and one of them might be you.” They didn't say, “We're announcing this, you're invited to apply. You're invited for consideration,” and the embarrassment and the, you know, social media pumping that you did and all that stuff, those are all serious things, and real people, ultimately, real juries, not lawyers, are the ones that decide cases.
And that's why we have juries in this country, actually, because the common sense part of it is important. And here, it just, you know, I'm not fooling that a common sense says that that wasn't a very good email to send. And having the disclaimer potentially, either- you're supposed to figure out that the unsubscribe button means you're not really being offered this? I mean- I mean your wife is smart, and that's good detective work, but in the end like it needs to be a heck of a lot more obvious than that.
Blake: Well, ‘cause I'm just your-
David: And I suspect that footer-
Blake: I’m just your average American.
Billy: Yeah.
David: Yeah.
Blake: What'd you say, David?
David: I said I suspect the footer is just the typical email footer that goes on any emails he sends out of their tool.
Blake: Yeah, it’s automatic.
David: I don't think it's tied to the rest of the email. It's just automatically thrown on there.
[00:47:19] Legal ramifications, but also just bad PR
David: But- so, yes, there's this legal implication, but really, the- and this goes probably back to Reese Witherspoon's thing with the dresses. It's the backlash of the bad PR and the publicity. You're- it almost- it's a double-edged sword of social media. And you're getting people talk about it, but at the same time, people are going to be like, “Yeah, those guys.” So, now, the next time Expensify wants to do something, people are gonna be very skeptical of it.
Billy: Mm-hmm.
Blake: It’s true. That’s to consider as well.
David: And so, it wasn't worth it. Maybe it was ‘cause we just spent 52 minutes only talking about this one piece of news.
Billy: Oh, and I only needed 13 for the drop-in section of my other episode. So, you better put a quiz in here or something.
David: We're gonna have to put the regular news as a bonus now on this episode.
Billy: Well, the problem is you give, you know, I bill by the hour. So, gimme a microphone and unlimited time and, you know, I'll just keep going. But there's two things you need to do. This is just common. If you're- let's say your Accounting firm wants to have some kind of a contest, or wants some kind of rules. There's two basic requirements you'd wanna include. One is to avoid violating the law and holding an illegal gambling, lottery.
There needs to be a free alternative method of entry. So, send a postcard, sign up, people need to be able to participate in a sweepstakes for free. That's to avoid gambling- violating the law with respect to gambling. The second thing is that you need to have contest rules. If it's a contest, the contest rules are the contract. So, you're forming contract- clear- clearly, we've discussed at length, ad nauseam, people haven't skipped ahead, that this is a contract. It is a bargained for exchange for value.
Okay? They're getting all kinds of benefits from it. You are taking acts in reliance. It's, I'd argue it's a contract. They formed a contract with you and because they didn't spell out what their contract terms were, clearly, their contract is gonna be read reasonably. It's gonna be read in a common sense kind of way. So, if you're setting up a contest, have rules. Say, “You're participating subject to the contest rules,” and then, you know, have like a click wrap agreement that's like, “I agree I've read these rules,” and it's like 10 pages and all caps and eight point font and whatever else you wanna limit your liability.
But there needs to be some kind of rules that people could reasonably know that they're agreeing to, and not saying, “This is a free giveaway. You're invited. You get this,” because it's a false promise. It's a misrepresentation. And I think it opens them up to actually, a fair amount of liability.
David: Yeah. Even the terms that's on the bottom of that page is just the typical- it takes you to the Expensify typical terms of service, which were last updated August 18th, 2021, so.
Blake: Yeah, not- specifically, for the Accounting- like the Expensify app, not for this.
Billy: Yeah. So, maybe send this episode to Expensify and tell 'em that you'll embargo it until you know when you’re invited.
David: Genius.
[00:50:21] Wrap up
Blake: Really, that is- I think that's the perfect way to wrap up this episode. Thank you so much for your time, your expertise. If people want to follow you online, where should they go?
Billy: @MaxHeadroomESQ on Twitter. You can also look up Laying Down The Law with Billy DeClercq, or go to DeClercq, DECLERCQ.law If you want actual legal services, TM.
Blake: David, how about you?
David: I'm just @DavidLeary. And-
Blake: And I- go ahead.
David: I cannot find you, Billy. There's a lot of Max Headrooms, so, can you like be very specific on how to type this in?
Billy: ESQ. MaxHeadroomESQ.
Blake: MaxHeadroomESQ.
David: ESQ, got it.
Blake: For Esquire. Do people still refer- do lawyer- attorneys, lawyers still refer to themselves as Esquire, or is that like a-
Billy: Only when you're raising your rates.
Blake: Gotcha. I am @BlakeTOliver. Find me on Twitter, find me on Instagram. I made my Instagram public. I'm gonna do videos and stuff now. And if you wanna get in touch with me, you can send me an email, Blake@BlakeOliver.com. You can send us voicemails. We do listen to those and we often play them on the air. And that'll do it for this episode.
We've got listener mail that we didn't get to. We got news we didn't get to, but you know what, it can wait. There are no Accounting emergencies. And thank you, everyone who wrote in. Appreciate that. And let us know what you think about this episode or any others. See ya here next week, David, and Billy.
David: See you in Italy.
Blake: See ya.
Billy: Bye.
David: Time for the classifieds.
[00:51:55] Get W9
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[00:52:19] Royalwise Solutions
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[00:52:50] Oh My Fraud: A True Crime Podcast for Accountants
Blake: Hey, podcast listeners, it's Blake, and I wanted to let you know about a new show I'm working on with CPA/comedian, Greg Kyte, and blogger/former CPA, Caleb Newquist. It's called Oh My Fraud, and it's a podcast all about financial crimes. That's right. A true crime podcast for accountants, by accountants.
Caleb and Greg are going to come together every couple of weeks to unpack their favorite frauds, and explore the circumstances, psychology, and interpersonal dynamics involved. They also fully indulge in victim blaming the defrauded widows, orphans, infirm, and feebleminded - because who can resist?
If you fancy yourself a trusted advisor, or prefer your true crime with spreadsheets instead of corpses, listen to this show to learn what to watch out for, and to keep your clients, your firm, and even yourself, safe. To subscribe, go to ohmyfraud.com, or search "Oh My Fraud" on Apple Podcasts, Spotify, or wherever you get your podcasts.
[00:53:48] How to advertise in these classifieds
David: Want to get the word out about your newsletter, webinar, party, Facebook group, podcast, e-book, job posting, or that fancy Excel macro you just created? Why not let the listeners of The Cloud Accounting Podcast know by running a classified ad? Hit the show notes for the link to get more info.
