When Competition Goes Too Far: Ice Cream Truck Edition [e173]

April 6, 2015

The guys kick off the week discussing how Sno Kone Joeallegedly stalked and harassed Mr. Ding-A-Ling and what crosses the line for fair competition.

Full Podcast Transcript

NASIR: All right. Welcome to our podcast where we cover business in the news and add our legal twist. My name’s Nasir Pasha.

MATT: And I’m Matt Staub. You remember last week when we recorded?

NASIR: It was a week ago but I do remember.

MATT: The people trying to break into the room?

NASIR: Yeah, that was crazy. Who was that?

MATT: It was a rival podcast of ours.

NASIR: No way!

MATT: Yeah, they tried to break in and yell stuff while we were recording. You know, it’s competition for them, so they didn’t want us to be recording. They thought, maybe if they came in and yelled things, that’d get us out of sorts or maybe people would stop listening because they’d just hear people yelling in the background and no one wants to listen to that.

NASIR: It was disrupting.

MATT: But, yeah, apparently this happens in other spots as well and much more hilarious names than ours. There’s a battle between Sno Kone Joe and Mr. Ding-A-Ling – two ice cream truck vendors that are in Gloversville, but I don’t know what state that’s in. The lawsuit was in Upstate New York.

NASIR: It must be in New York then.

MATT: Yeah, I would think so. This is very town-centric because basically you have Josh Malatino – he’s Mr. Sno Kone and he’s had his business, I guess, for a while in Gloversville – and there was a new guy that came in town, Mr. Ding-A-Ling – you know, new into town, just trying to give ice cream presumably to kids. Kids love to hear that sound of the ice cream coming through. I actually hear it every now and then at my house.

NASIR: Well, I’m trying to figure out if the Sno Kone guy, what’s his name? Sno Kone Joe?

MATT: Sno Kone Joe, yeah.

NASIR: Well, snow cones are different than ice cream so does Sno Kone Joe also sell ice cream? I feel like he does because the one that was upset, I suppose, they would follow the other competitor’s ice cream truck and then give out ice cream, basically killing the business. You know, I thought this was a joke but, you know, people get pretty competitive in the food truck business, right? And, apparently, I think there’s a Simpson’s episode about that, if I recall, which is also about franchises. So, interesting tie-in for us lawyers.

MATT: Yeah, and let me get to some of the things that happened. Basically, Sno Kone Joe got upset that there’s this new competition in town. He would just follow around the other guy, just yelling at him, “You don’t have a chance! This is my town!” You know, he did get arrested for stalking or bullying – however you want to, I guess, more so stalking. He would just pull up behind the guy and yell “free ice cream!” to people as the second guy was trying to sell his product.

NASIR: So, what makes this a little bit more interesting, and I was trying to find more information about this, but the Mr. Ding-A-Ling owner, Brian Collis, Ding-A-Ling says that he and the previous owner of Sno Kone Joe had an agreement not to bring in Mr. Ding-A-Ling trucks into Gloversville. Okay. Just to follow what’s going on here because I know these names are confusing, Mr. Ding-A-Ling had an agreement with the former owner of Sno Kone Joe’s business saying, “Okay. We’re not going to bring any Ding-A-Ling trucks into Gloverville,” but that arrangement ended as soon as – let’s see – Malatino, who is what?

MATT: Mr. Sno Kone.

NASIR: He’s Mr. Sno Kone or Sno Kone Joe or whatever. So, as soon as he took the business over, that agreement somehow went out the window. And so, Ding-A-Ling trucks took advantage of that. Now, the question was, okay, if this agreement existed, was it in writing and, by Malatino or Sno Kone Joe, by taking over the business, did he take on that agreement as well and as restricted in that respect?

MATT: So, such a very professional and legal actual substance to this with two hilarious names.

NASIR: Yeah.

MATT: Sno Kone Joe did get arrested for the sort of stalking and harassment issues it had and I guess this has happened for a couple of years now – back in 2013 – but the Upstate New York Court judge just dismissed the stalking harassing charges against Sno Kone Joe so I guess it wasn’t serious enough to warrant any sort of punishment other than getting arrested, of course, as an ice cream truck owner. But I don’t know how that agreement really plays into the stalking and harassment charges. I guess I’d have to see the agreement and just see kind of what was in there.

NASIR: I have a feeling that – I don’t know – this may have been just a handshake deal because, apparently, when speaking to the old owner – this is the Sno Kone Joe saying it – I guess he told the old owner something like, “Don’t worry. He won’t come around here.” So, it seems a little casual to me which, you know, they could have carved out territory. They could have said, “Okay, you know, you have this area, I have this area.” You can put it in an agreement, like, if you sell your business that you have to restrict their use of those assets and those names in order for you to be able to sell. So, there is a way to have successors in that restrictive covenant. I’m happy that we were able to find a nice legal substance out of this story that we just wanted to cover because it was so funny.

MATT: Yeah. I mean, I can’t even imagine this being in court. I mean, are they using the names of these businesses?

NASIR: I know.

MATT: It just seems so funny. Like I said, the judge threw it out. You know, I wonder if it’s just because the judge got this and just said, you know, “This is so ridiculous and a waste of time that it’s just not even worth the battle.”

NASIR: It seemed like they may have had a case for harassment but it may not have crossed that line. I mean, some of the language – I don’t know if you read this already – one of the allegations where the defendant would follow his ice cream truck, yelling like a villain in one of those old movies, “You don’t have a chance! This is my town!” Ah, I love it.

MATT: And it’s funny, if you look at the two different business owners in this, you would think that it was the opposite way around. Like, the guy that was getting harassed looks very rough and he’s older. You know, he’s probably twenty years older than the guy who was doing the harassing so you would think the guy who was older, who’s been around a long time, he would be the one that was upset with a new business coming into town. But, at the end of the day, we’re talking about ice cream trucks. I mean, can there be too many ice cream trucks?

NASIR: That’s the real question.

MATT: There’s room for two, right?

NASIR: Well, I’m sure you guys have all seen those food truck parking lots and they move around and so forth. In that example, if there were two food trucks in the same parking lot that basically served the same or similar food, that can be a problem. You know, you compare it to dealerships that all line up next to each other and there’s benefit for that because, when you want to buy a car, you’re able to compare and there’s actually benefit for the dealerships to do that. And so, the question is, is it the same with ice cream? I don’t know. I can see how, especially if your ice cream’s not that good, I’d be more concerned, right?

MATT: They’re all selling the same stuff, I would suspect.

NASIR: Well, like I said, if they’re doing snow cones, that’s a much different treat and some people will go for that before they’ll go for just the regular ice cream.

MATT: You did mention that the Sno Kone Joe is a franchise, right?

NASIR: No, I don’t know the Sno Kone Joe franchise.

MATT: It says Malatino who owns homegrown Sno Kone Joe franchise has threatened rival ice cream trucks before.

NASIR: There is a Joe Sno Kone in South Houston here in Texas and looks just like, I mean, I grew up in Vandalia, Ohio, where, on the corner of the parking lot of Kroger’s, it was literally like a small shack and it was called the Sno Shack – I think that’s what it was called. My friends from high school will probably correct me if I’m wrong but that was the place to go in the summer – of all ages from, like, zero to eighteen years – and that institution of a place, I think, closed down less than a decade ago.

MATT: Probably because Sno Kone Joe was driving around harassing them, yelling, “This is my…” I mean, under what sort of thought process is this guy yelling, “This is my town!” All he does is operate an ice cream truck.

NASIR: We should note that it was him and his girlfriend that got arrested the first time because they were shadowing the other driver, basically blaring their jingles and trying to pry customers away, saying, “Free ice cream!” et cetera. So, he had a partner in crime, so to speak, allegedly.

MATT: I mean, I don’t know, we had a lot of fun with this. I don’t know if we touched on enough legal side to it.

NASIR: That’s okay.

MATT: Speaking to competition, healthy competition is all good and fine but, you know, there’s a line that can be crossed because we’ve dealt with, I mean, we’ve dealt with this before in terms of businesses that their employees of Business A will leave negative reviews on Business B’s site. I mean, you can’t do stuff like that. It’s not truthful.

NASIR: What’s going on now is negative SEO. I don’t know if you know much about that but have you heard of that? Negative SEO?

MATT: Yeah, you were talking about it.

NASIR: It used to be kind of a myth where the concept of search engine optimization is that, okay, you’re going to do certain things in order for your website to appear in Google’s search rankings at a higher level based upon certain keywords. And so, that’s what SEO is known for. But the negative SEO is the opposite – taking certain listings or certain websites and dropping them down on the search using Google’s own algorithm because, what Google will do is, they’ll punish you for trying to manipulate the so-called black hat tactics to try to manipulate your rankings. And so, for the first time, people are starting – for the first time in the last, I think, this is like a year or two-year issue, if I understand correctly, that this is starting to happen – and there’s no law that necessarily prohibits them. And so, even filling a lawsuit, you would have a hard time combatting this.

MATT: Yeah. I mean, that’s the ugly side of it. I mean, I guess for a business like an ice cream truck that pretty much all their business is just going to be driving around, playing their little song, then it’s probably more detrimental to have someone following you. Like, no one’s going to see an ice cream truck go online and look up the reviews.

NASIR: No.

MATT: Probably because, first of all, it’s going to be kids for the most part. And, two, I guess is, “Do you heard that sound?” It’s one of those things in life where you hear the sound and you know exactly what it is.

NASIR: I know. They have those exact tunes which always makes me wonder whether there’s a copyright attached to that, whether they have the rights to play it.

MATT: I remember, wasn’t it last summer you went around the local Houston area and were handing out cease and desist letters to ice cream trucks as they were serving kids?

NASIR: That was me, yup! That was me. I got on the news for that. That was great.

MATT: Pretty crazy. There was a big public backlash against you because you shut down every ice cream vendor in the greater Houston area and the kids were pretty upset about it.

NASIR: Well, I gave the letters to the kids too because they were aiding and abetting to copyright infringement so the hard part with that is I had to serve the parents because they were minors so it became kind of awkward.

MATT: Ah, the worst type of person.

NASIR: Ah.

MATT: That would be so terrible.

NASIR: All right. Well, thanks for joining us, everyone. That was a nice episode. We do got to cover negative SEO. I think we’ve got to add that to our topic list.

MATT: Yeah, it’s crazy. It’s an interesting thing. I don’t know if many people even know about it.

NASIR: I don’t even know about it. I just made that word up.

MATT: Ah, all right. Well, I think that’s it so keep it sound and keep it smart.

Legally Sound | Smart Business

By

The Podcast Where Nasir Pasha and Matt Staub cover business in the news with their legal twist and answer business legal questions that you the listener can send it to info@legallysoundsmartbusiness.com.

Get Business Legal Updates

Please provide your full name.
Please provide a valid email address.
We respect your privacy, and we will never share your information. Unsubscribe at any time.

Legally Sound Smart Business

A business podcast with a legal twist

Legally Sound Smart Business is a podcast by Pasha Law PC covering different topics in business advice and news with a legal twist with attorneys Nasir Pasha and Matt Staub.

Latest Episodes

February 4, 2021

How you terminate an employee can make the difference between a graceful transition to avoidable negative outcomes like a dramatic exit or even a lawsuit. We gathered a panel of experts and asked them – is there a “right way” to fire an employee? We would like to thank our guests for this episode: Amr…

December 2, 2020

The COVID-19 pandemic has turned nearly every aspect of life on its head, and that certainly holds true for the business world. In this episode, Matt and Nasir explain how the early days of the pandemic felt like the Wild West and how the shifting legal playing field left a lot open to interpretation and…

November 16, 2020

After plenty of ups and downs, our buyer has finally closed on the purchase of their business. While we’re marking this down in the ‘wins’ column, it never hurts to review the game tape. In this final episode, our hosts, Matt Staub and Nasir Pasha, return to the deal almost a year later to reflect…

September 15, 2020

The ink is drying on the signature line and things are looking great for our buyer. After so much hard work, the finish line is in sight and the cheering within ear shot.   Though the landlord is still serving friction, things seem safe to move forward and for now, our buyer will be keeping…

July 31, 2020

Though things are coming along well, the journey would not be interesting if it was purely smooth sailing. After our buyer opens escrow, they are forced to push the closing date back when suddenly a letter from an attorney was received claiming the business, we are buying has a trade mark on the name!  Now…

June 12, 2020

With frustration at an all-time high and professionalism at an all-time low, our friend the Buyer has “had it” with the Seller and quite frankly their lack of knowledge. At present our Buyer is rightfully concerned that the latest misstep from our loose-lipped Seller will threaten not only the entire operation of the businesses but…

May 11, 2020

As we go deeper into the buying process, we start to uncover more challenges from our seller and encounter some of the wrenches they are tossing our way. When we last left off in episode three our team was knee deep in due diligence for our buyer, had already penned and signed the Letter of…

April 4, 2020

One word–interloper! When a new mysterious broker enters the transaction and starts to kick up dust, Nasir and Matt take the reins. The seller signed off on the letter of intent (see episode 2), yet this “business broker” serves only friction and challenges by refusing to send financials, whilst demanding more of a firm commitment…

April 4, 2020

Just as most stories and deals start out, everyone is optimistic, idealistic and full of hope for clear skies. It’s a perfect outlook with a perfect setup for the ups and downs yet to come. Peek further behind the curtain and into the first steps of buying a business: the letter of intent. After the…

April 4, 2020

When a savvy buyer hears opportunity knocking to purchase a prime positioned business, she decides not to go it alone and taps in the professionals to help navigate what could potentially be a fruitful acquisition. “Behind the Buy” is a truly rare and exclusive peak into the actual process, dangers, pitfalls and achievements, that can…

August 7, 2019

GrubHub is subject to two “matters of controversy” that have likely become common knowledge to business owners: “fake” orders and unfriendly microsites.

May 28, 2019

In this podcast episode, Matt and Nasir breakdown the legal issues of the subscription industry’s business on the internet. Resources A good 50-state survey for data breach notifications as of July 2018. California Auto-Renewal Law (July 2018) Privacy Policies Law by State Why Users of Ashley Madison May Not Sue for Data Breach [e210] Ultimate…

March 12, 2019

In recording this episode’s topic on the business buying process, Matt’s metaphor, in comparing the process to getting married probably went too far, but they do resemble one another. Listen to the episode for legal advice on buying a business.

December 3, 2018

Nasir and Matt return to discuss the different options available to companies looking to raise funds through general solicitation and crowdfunding. They discuss the rules associated with the various offerings under SEC regulations and state laws, as well as more informal arrangements. The two also discuss the intriguing story about a couple who raised over…

July 24, 2018

Flight Sim Labs, a software add-on creator for flight simulators, stepped into a PR disaster and possibly some substantial legal issues when it allegedly included a Trojan horse of sorts as malware to combat pirating of its $100 Airbus A320 software. The hidden test.exe file triggered anti-virus software for good reason as it was actually…

April 17, 2018

Attorneys Matt Staub and Nasir Pasha examine Mark Zuckerberg’s congressional hearings about the state of Facebook. The two also discuss Cambridge Analytica and the series of events that led to the congressional hearings, the former and current versions of Facebook’s Terms of Service, and how businesses should be handling data privacy. Full Podcast Transcript NASIR:…

March 10, 2018

The Trump presidency has led to a major increase in ICE immigration enforcement. It’s critical for business owners to both comply with and know their rights when it comes to an ICE audit or raid. Nasir, Matt, and Pasha Law attorney Karen McConville discuss how businesses can prepare for potential ICE action and how to…

February 5, 2018

New years always bring new laws. Effective January 1, 2018, California has made general contractors jointly liable for the unpaid wages, fringe benefits, and other benefit payments of a subcontractor. Nasir and Matt discuss who the new law applies to and how this affects all tiers in the general contractor-subcontractor relationship. Click here to learn…

January 2, 2018

With a seemingly endless amount of new mattress options becoming available, it is unsurprising that the market has become increasingly aggressive. As companies invest in more innovative solutions to get in front of customers, review sites, blogs and YouTube videos have moved to the forefront of how customers are deciding on their mattresses and how…

December 7, 2017

In recent months explosive amounts of high profile allegations of sexual harassment, assault, and varying acts of inappropriate behavior have transcended every sector of our professional world. With a deluge from Hollywood and politics, and the private workforce, accusations have inundated our feeds and mass media. This harassment watershed has not only been felt within…

November 16, 2017

If you are not familiar with the EB-5 program started in 1990 to give green cards to certain qualified investors in the United States, then you may not have been alone a few years ago. Currently, the EB-5 program has since exploded since its inception and now hits its quotas consistently each year. The program…

October 10, 2017

Government requests come in multiple forms. They can come in as requests for client information or even in the form of investigating your company or your employees. Requests for Client Information General Rule to Follow Without understanding the nuances of criminal and constitutional law and having to cite Supreme Court cases, any government requests for…

August 24, 2017

Nasir and Matt suit up to talk about everything pertaining to employee dress codes. They discuss the Federal laws that govern many rules for employers, as well as state specific nuances in California and other states. The two also emphasize the difficulty in identifyingreligious expression in dress and appearance, how gender-related dress codes have evolved…

June 28, 2017

Nasir and Matt discuss the life cycle of a negative online review. They talk about how businesses should properly respond, how to determine if the review is defamatory, the options available to seek removal of the review, how to identify anonymous reviewers, whether businesses can require clients to agree not to write negative reviews, and…

June 7, 2017

On this episode of the Ultimate Legal Breakdown, Nasir and Mattbreak down social media marketing withguests Tyler Sickmeyer and Kyle Weberof Fidelitas Development. They first discuss contests and promotionsand talk about where social media promotions can go wrong,when businesses are actually running an illegal lottery, and the importance of a soundterms and conditions. Next, they…

April 3, 2017

On this episode of the Ultimate Legal Breakdown, Nasir and Matt go in depth with the subscription box business. They discuss where subscription box companies have gone wrong(4:30), the importance of a specifically tailored terms and conditions(6:30), how to structure return policies (11:45), product liability concerns (14:45),the offensive and defensive side of intellectual property (19:00),…

February 1, 2017

Nasir and Matt discuss the suit against Apple that resultedfrom a car crashed caused by the use of FaceTime while driving. They also discuss howforeseeable use of apps can increase liability for companies. Full Podcast Transcript NASIR: Hi and welcome to Legally Sound Smart Business! I’m Nasir Pasha. MATT: And I’m Matt Staub. Two attorneys…

January 5, 2017

The guys kick in the new year by first discussing Cinnabon’s portrayal of Carrie Fisher as Princess Leia soon after her death, as well as other gaffes involving Prince and David Bowie. They alsotalk about right of publicity claims companies could be held liable for based on using someone’s name or likeness for commercial gain.

December 22, 2016

Nasir and Matt discuss the recent incidentat a Victoria’s Secret store where the store manager kicked out all black women after one black woman was caught shoplifting. They then each present dueling steps businesses should take when employees are accused of harassment.

December 8, 2016

Nasir and Matt return to talk about the different types of clients that may have outstanding invoices and how businesses can convert unpaid bills to getting paid.

November 10, 2016

After a long break, Nasir and Matt are back to discuss a Milwaukee frozen custard stand that is now revising it’s English only policy for employees. The guys also discuss how similar policies could be grounds for discrimination and what employers can do to revise their policies.

October 6, 2016

The guys discuss the new California law that allows actors to request the removal of their date of birth and birthdays on their IMDB page and why they think the law won’t last. They also discuss how age discrimination claims arise for business owner.

September 29, 2016

Nasir and Matt discuss the racial discrimination claims surroundingAirbnb and how it’s handled the situation. They also discuss some practical tips for businesses experiencing similar issues.

September 8, 2016

Nasir and Matt discuss whyAmazon seller accounts are getting suspended and banned without notice and how business owners can rectify this situation through a Corrective Action Plan.

August 25, 2016

Nasir and Matt talk about the accusations surroundingfashion giant Zararipping off the designs of independent artists like Tuesday Bassen and howsmaller companies can battle the industry giants.

August 18, 2016

Nasir and Matt discuss Brave Software’s ad replacing technology that has caught the eye of almost every national newspaper and has a potential copyright infringement claim looming. They also welcome digital marketing expert Matt Michaelree to speak on the specifics of what Brave is attempting to do and whether it has the answers moving forward.

July 28, 2016

Nasir and Matt discuss the sexual harassment lawsuit filed by Gretchen Carlson against Fox CEO Roger Ailes. They also talk aboutthe importance of sexual harassment training and properly handling such allegations in the office.

July 15, 2016

Nasir and Matt talk about the changes at Starbucks that have led to many disgruntled employees and customers.

June 23, 2016

Nasir and Matt discuss the criminal charges facing FedExinvolving the alleged transportation of illegal drugs. They also talk about how business owners should address working with customers that may be breaking the law.

June 15, 2016

The guys return after a long break to discuss why Yahoo is auctioning off over 3,000 patents and how this decision will affect the longevity of the company.

May 25, 2016

Nasir and Matt discuss the increase in the salary thresholdfor exempt employees and how employerscan try to avoid paying overtime as a result.

May 18, 2016

Nasir and Matt discuss the Baltimore law that makes it very difficult to operate food trucks in the city. They also discuss all the legal restrictions tohaving a food truck.

May 11, 2016

Matt listens to Nasir recap the developing battle in his hometown of Vandalia, Ohio over whether a Dunkin Donuts can move into a location in close proximity to a local favorite donut shop. They then discusswhether the issue is more legal or personal.

May 9, 2016

The guys kick off the week by discussing a Nevada employee who is claiming she was fired for not supporting the Scientology beliefs of her employer.

April 27, 2016

The guys discuss the massive floods in Houston,how employers responded, and why one meteorologist became a local hero. They also discuss the steps businesses should take in preparing for storms outside the workplace.

April 20, 2016

The guys discuss the boycott of Amazon over the products of an unnamed presidential candidate. They also talkabout how a business should handle a boycott and whether it’s possible to exit one unscathed.

April 13, 2016

Click here to read HubSpot’s response on this topic. Nasir and Matt discuss the trend in startups to compensate programmers and other early employees with stock options and how the company culture at HubSpot isn’t what it seems.

April 6, 2016

Nasir and Matt discuss various lawsuits against social media platforms in which users are accused of artificially inflating their social currency.

March 30, 2016

Nasir and Matt discuss the class action suit against Jessica Alba’s Honest Company for allegedlyselling products that contained harmful chemicals.

March 23, 2016

Nasir and Matt talk about the story out of Texas that Mexican restaurants were reportedly attempting to ban Trump supporters from eating at their restaurants.

We represent businesses.
That’s all we do.

Oh, and we love it.

We love our work. We love reviewing that lease for your new location. We thrive on closing that acquisition that nearly fell through. We’re fulfilled when we structure a business to grow, raise capital, and be legally protected.

We focus on developing close relationships with our clients by being like business partners. A partner who provides essential, personalized, proactive legal support.

We do all of this without utilizing the traditional billable hour model. You pay for the value we bring, not the time spent on calls, emails, and meetings.

Our team is made up of attorneys and staff that share these values and we are retained by clients who want the same.

Pasha Law PC operates in the states of California, Illinois, New York, and Texas.

Meet Our Team

Fractional General Counsel Services

Pasha Law Select offers the expertise of a high-end general counsel legal team for every aspect of your business at a fixed monthly rate. Pasha Law Select is deliberately designed to allow our legal team to be proactive, to anticipate, and to be comprehensive in serving our clients. To be great lawyers, we need to know our clients. We can’t know our clients unless we represent a select number of clients in the long-term. This is Pasha Law Select.

Learn More