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North Atlantic Regional Business Law Association

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North Atlantic Regional Business Law Association Published by Husson University Bangor, Maine For the NORTH ATLANTIC REGIONAL BUSINESS LAW ASSOCIATION EDITORS-IN-CHIEF William B. Read Husson University Marie E. Hansen Husson University BOARD OF EDITORS Michelle D. Bazin Stephen D. Lichtenstein University of Massachusetts-Lowell Bentley University Robert C. Bird Carter H. Manny University of Connecticut University of Southern Maine Elizabeth A. Brown Christine N. O’Brien Bentley University Boston College Margaret T. Campbell Lucille M. Ponte Husson University Florida Coastal School of Law Gerald R. Ferrera Patricia Q. Robertson Bentley University Arkansas State University Stephanie M. Greene David Silverstein Boston College Suffolk University William E. Greenspan David P. Twomey University of Bridgeport Boston College Anne-Marie G. Hakstian Thomas L. Wesner Salem State University Boston College i GUIDELINES FOR 2018 Papers presented at the 2018 Annual Meeting and Conference will be considered for publication in the Business Law Review. In order to permit blind peer refereeing of manuscripts for the 2018 Business Law Review, papers must not identify the author or the author’s institutional affiliation. A separate cover page should contain the title, the author's name, affiliation, and address. If you are presenting a paper and would like to have it considered for publication, you must submit one clean copy by email no later than April 6, 2018 to: William B. Read Husson University 1 College Circle Bangor, Maine 04401 [email protected] The Board of Editors of the Business Law Review will judge each paper on its scholarly contribution, research quality, topic interest (related to business law or the legal environment), writing quality, and readiness for publication. Please note that, although you are welcome to present papers relating to teaching business law, those papers will not be eligible for publication in the Business Law Review. This subject matter should be submitted to the Journal of Legal Studies Education. Also note that the Board of Editors will consider only one paper per person, including co-authored papers. Only papers presented at the Annual Meeting will be considered for publication. FORMAT 1. Papers should be no more than 20 single-spaced pages, including footnotes. For fonts, use 12 point, Times New Roman. 2. Skip lines between paragraphs and between section titles and paragraphs. Indent paragraphs 5 spaces. Right-hand justification is desirable, but not necessary. 3. Margins: left—1-1/2 inches, right, top, bottom (except first page)—1 inch. 4. Upon acceptance, the first page must have the following format: a. The title should be centered, in CAPITAL LETTERS, on line 10. b. Following the title, center the word “by” and the author’s name, followed by an asterisk (*). c. Space down 3 lines and begin your text. d. Please add a solid line (18 spaces in length) beginning from the left margin, toward the bottom of the first page, leaving enough room under the line to type on the next line an asterisk, the author’s position or title and affiliation. This information should appear as the last line on the page. 5. Headings: FIRST LEVEL (caps, flush with left margin) Second Level (center, italics) Third Level: (flush with left margin, italics, followed by a colon [:]) Fourth Level: (flush with left margin, italics, followed by a colon [:], with text immediately following). 6. Footnotes should conform to The Bluebook: A Uniform System of Citation, 20th edition, 2015. 7. E-mail a copy of the final version of your paper in Microsoft Word to [email protected]. ii The Business Law Review is published once each year. Its purpose is to encourage scholarly research in Business Law and the Legal Environment of Business. Publication is made possible by gifts and grants from: David Silverstein Attorney at Law Husson University, Bangor, ME. North Atlantic Regional Business Law Association Cengage Learning THANK YOU Next Annual NARBLA Meeting April 14, 2018 Salem State University Salem, Massachusetts Please contact Professor Anne-Marie Hakstian Salem State University Salem, MA 01970 (978) 542-6823 iii PUBLICATION LOCATIONS The Business Law Review is the official publication of the North Atlantic Regional Business Law Association (NARBLA)- www.narbla.org. The Journal is listed in Cabell’s (Management) Directory. The Business Law Review has entered into an electronic licensing relationship with EBSCO Publishing, the world’s most prolific aggregator of full text journals, magazines and other sources. The full text of the Business Law Review can be found on EBSCO Publishing’s databases. The full text of the Business Law Review can also be found at www.husson.edu/businesslawreview iv DEDICATION In gratitude for his exemplary and longstanding service as Editor- in-Chief of the Business Law Review, the Board of Editors and the members of the North Atlantic Regional Business Law Association are so very pleased to dedicate this 50th Anniversary Edition of the journal to: William B. Read, Husson University, Bangor, Maine. HISTORY OF THE BUSINESS LAW REVIEW In Fall 1968, the first edition of the Business Law Review was published by then Husson College. The dedication by President Chelsey H. Husson Sr. read as follows: The law, written and unwritten, guides men in all pursuits and protects their efforts. Knotty problems can be solved only when knowledge of the law is comprehensive. To improve this comprehension, to expand man’s knowledge of the statutes, to aid in this interpretation, are the purposes that caused this journal to be published. It is a contribution of merit to this discipline and possesses value not only to the v student of law, but to the layman who will find much to interest him since it governs his every movement. The Business Law Review continues to be published yearly by Husson University for the North Atlantic Regional Business Law Association (NARBLA). Its purpose is to encourage scholarly research in Business Law and the Legal Environment of Business. The Board of Editors for the journal includes professors and experienced legal practitioners from Arkansas, Connecticut, Florida, Rhode Island, Maine, and Massachusetts. vi TABLE OF CONTENTS A Glass Half Full? Enduring Small Business Frustrations Under the Consumer Review Fairness Act of 2016 Lucille M. Ponte ................................................................................... 1 Public Toes in Private Sand: Public Prescriptive Easements and How the Presumption of Permission Supports Tourism and Recreation on Maine Beaches Margaret T. Campbell ....................................................................... 21 Traps for the Unwary Commercial Drone User Chantalle R. Forgues ......................................................................... 41 Stick ‘Em Up This Is a Breach: A Case for Punitive Damages for Contract Holdups Scott Thomas, David Missirian and Mystica Alexander ................. 67 The Developing Law of Employee Non-Competition Agreements: Correcting Abuses; Making Adjustments to Enhance Economic Growth David P. Twomey ............................................................................... 87 Copyright 2017 North Atlantic Regional Business Law Association vii A GLASS HALF FULL? ENDURING SMALL BUSINESS FRUSTRATIONS UNDER THE CONSUMER REVIEW FAIRNESS ACT OF 2016 by Lucille M. Ponte* With the rise of social media, brand communications have become more interactive with an ever-growing number of crowdsourced review sites.1 Businesses quickly learned that generating positive consumer ratings and reviews often translated into enhanced brand reputation and increased revenues.2 In light of these incentives, some companies bought glowing reviews from pay-to-post blog farms or secretly compensated legitimate bloggers in hopes of receiving positive ratings.3 * Associate Professor of Law Florida Coastal School of Law. 1 Approximately 89 percent of consumers believe that online reviews are trustworthy in evaluating products and services. Game Changer: Cone Survey Finds 4-out-of-5 Consumers Reverse Purchase Decisions Based on Negative Online Reviews, Cone Communications, Inc. (Aug. 30, 2011), http://www.conecomm.com/stuff/contentmgr/files/ 0/286c351989671ae74994fec139863bb2/files/2011_cone_online_influence_trend_tracker _release_and_fact_sheet.pdf, archived at http://perma.cc/VA8H-4GMM. 2 Paresh Dave, Small businesses struggle to manage online image, L.A. Times, Aug. 9, 2013, http://www.latimes.com/business/la-fi-tech-savvy-online-reviews-20130810- story.html, archived at https://perma.cc/7SJQ-6WD7?type=source. Research, including Harvard Business School and University of California, Berkeley studies, indicate that ratings, positive and negative, can directly and substantially impact business revenues. Dave, supra. The Harvard study found that even a scant one-star rise in Yelp ratings corresponded to a five to nine percent increase in revenues for local restaurants. Id. Alternatively, a single negative online review may result in a twenty-five percent or more decline in revenues. Id. 3 Sonia K. Katyal, Stealth Marketing and Antibranding: The Love that Dare Not Speak Its Name, 58 BUFF. L. REV. 795, 833-34; Kendall L. Short, Note: Buy My Vote: 2 / Vol. 50 / Business Law Review In 2009, the Federal Trade Commission’s Revised Endorsement Guides set strict disclosure rules for those compensating reviewers and undertook some high-profile enforcement actions to try to prevent sponsored ads from masquerading as ordinary consumer opinions.4 Other businesses, from wedding photographers5 to hotels6
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