Unfortunately I was a bit late to this session today, but I got a lot of good info in the 40 minutes I did attend. The panel consisted of:

• Adam Riemer, Director of Marketing & Client Relations, Downtown Ecommerce Partners (Moderator)
• Chris Henger, Group Product Manager, Google Affiliate Network
• Kim Rodgers, Affiliate Manager, 4Checks.com
• Melanie Seery, Affiliate, NY Affiliate Voice
• Clarke D. Walton, Internet Lawyer, Walton Law Firm, P.C.

First I do have to comment on the panelists – I had the pleasure of hearing a session at ASW08 where Clarke spoke on internet taxes in relation to affiliates and I have to tell you – this is the kind of lawyer you want in your Rolodex.  He’s extremely internet and tech savvy, which is always good when you’re talking about internet law.  He has experience doing affiliate marketing himself, so he can totally relate to your issues.  And he clearly knows his stuff.

Speaking of really knowing their stuff, Kim Rodgers is the ace affiliate manager who really knows what she’s doing, and has built her program up SO much it’s phenomenal.  I had the pleasure of sitting with her last night at the Affiliate Dinner (more on that later) and she really is a great AM and has the unique experience of being in the position of a company that initially culled their NY affiliates and now, after some changes internally, are able to welcome them back and have to regain their business (not to mention their trust).

So, the bullet point review of the panel:

• Networks can’t really give any advice to affiliates legally, so they’ve pretty much had to stay out of it.
• Early in July, California explored the NY law and determined that affiliates don’t prove nexus, hence pretty much saying the opposite of what NY is.  Hopefully for those of us in California this means that they’ve gotten it out of their heads to try to mimic this.
• Late in July the NY state senate approved a motion to repeal the tax, so while there’s not much news about this yet it’s a step in the right direction in terms of a repeal.
• It’s important for affiliates to be willing to comply and work with their merchants to get through this and maintain a good relationship.
• Affiliates in NY will have to give up a little privacy (like their NY address) in an effort to comply.
• Merchants can simply add a small paragraph into their terms of service that NY based affiliates need to agree to specifically to comply with laws.
• Affiliate managers need to follow up with the NY affiliates to make sure they’ve read the modified TOS and agree.
• Merchants who kicked NY affiliates right away probably have a better chance of wooing them back than merchants who waited until the middle of June and then deactivated the NY affiliates retroactive to May 31st.  Melanie’s opinion?  “They don’t have a prayer.”

Some take-home answers from the open Q&A:

• The law applies to merchants based in Canada as well  (unfortunately I couldn’t hear if they said it applied to international merchants too).
• The law is not clear if nexus is established when a merchant has affiliates who make $10,000 per year aggregate or per affiliate.
• Affiliate managers should not encourage their affiliates to incorporate their businesses in other states.  This is a poor work around (it’s not a solution) since, well, what if that state’s next to adopt a similar law?  You can’t keep reincorporating and it’s basically fraudulent anyway.
• The state of Washington has come close with a similar law affecting internet sales and taxes.  Formerly, the tax rate on an internet sale was calculated based on where the merchant is located.  Now, it’s calculated based on where the order is shipping to.  This only applies within the state – for now.  (As an aside, I know that the California law is already like this and bases tax assessment on the shipping address, being that PsPrint is based in California).
• The federal government is also looking into these laws since we are talking about interstate commerce and may make a move soon, but it’s hard to say in what direction that move will be.

If you caught anything I didn’t (ahem 11|15 Media’s Michael Buechele), please share with the rest of us!

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