Marianne Marchese: If you think it's valuable, it probably is. So find out how to protect that. If an influencer misrepresents your brand, the responsibility doesn't fall on the influencer, it falls on you as the business. Don't even bother with T's and C's and privacy policies if you're not going to do the work.
[Voiceover]: Welcome to add to cart, Australia's leading
Marianne Marchese: e commerce podcast that Express delivers all you need to know in the fast moving world of online retail. Here's your host, Bushy.
Nathan Bush: Hey, it's Nathan Bush or Bushy joining you from the land of the terrible people here in Brisbane, Australia. I'm not gonna lie, I struggled to
[Voiceover]: come up with a pithy opening or a pithy title that's really gonna hook you into this episode because let's face
Nathan Bush: it, it's about law and legal stuff.
[Voiceover]: I mean, lawyers, right? Who wants to hang out with them for 45 minutes? This one you wanna hang out with. This one I can guarantee you.
Nathan Bush: Stick with me here.
[Voiceover]: I know it's not the stuff that we typically get excited about in E
Nathan Bush: commerce, I but it is so important.
[Voiceover]: I don't know anyone who doesn't have
Nathan Bush: a horror story from either themselves or
[Voiceover]: someone they know in E commerce, where a little bit of care and a little bit of due diligence early on in the piece could have actually saved
Nathan Bush: them from a lot of heartbreak and a lot of work.
[Voiceover]: And so luckily enough, I've been able to find a lawyer who not only can explain our legal responsibilities in a really simple way, but is also really keen to shake things up and do it a bit differently. Marianne Marchese is the founder of Legalite. Legalite is an award winning agency based
Nathan Bush: out of Melbourne, but with staff all
[Voiceover]: around Australia, who is shaking things up? Mary Ann has an amazing story herself from a corporate career, she's decided to take on what is a typically old, dated and let's face it, male dominated
Nathan Bush: industry and make sure that it is
[Voiceover]: inclusive and adaptable for the new world that comes. She gives us so many great insights on how to approach the most common legal responsibilities that we have in E commerce and retail. Everything from making sure that we've got the right data policies through to how to create contracts that actually stand up and mean something, through to writing terms and conditions on a website. And of course we couldn't let this conversation go without talking about the legal quagmire that is AI. Yep, I know, couldn't avoid it.
Nathan Bush: Here it is.
[Voiceover]: We had to do it, but it's great. Because Marianne gives us so much more than your legal lawyer speak and only
Nathan Bush: uses the phrase it depends once.
[Voiceover]: So stick with us because this next 50 minutes could be the most valuable of your career. It could help you avoid making some tremendous mistakes. And Marianne's great fun. You'll enjoy this. All right, here's my conversation with Marianne Marchese, who is the founder of Legal Light.
Nathan Bush: Marianne, welcome to ADD to cart.
Marianne Marchese: Thank you so much, Nathan. Such a pleasure to be here.
Nathan Bush: It's awesome to have you here. You are actually our first lawyer on ADD to cart.
Marianne Marchese: How good is that?
Nathan Bush: I know. I'm kind of proud that we've got to 550 episodes and we haven't had the lawyers chase us yet.
Marianne Marchese: That's brilliant, Orwell, I'm very honored.
Nathan Bush: Well, I think it's a fascinating topic that we're going to dive into today and I've heard a lot about what you and the Legalite team are doing because firstly, my sister in law, Carly, works there, so that's fantastic. But also, you have recently published articles in Inside Retail, so you're very much focused on the retail industry. But what I love most is that you also approach law and business a little bit differently. So I want to throw to you. Tell me a little bit about your journey and how you established Legalite to fill a gap that you saw in the market and operate a little bit differently.
Marianne Marchese: Yeah, absolutely. So I worked in traditional private practice for about 10 years and I worked in different size law firms. Some were larger, medium and boutique firms, but they were all kind of the same. Same thing, you know, like billing by 6 minute units and printing absolutely everything we had. Everyone's office had like filing cabinets just full of paper. They would just print everything. It was the bane of my existence, especially as someone who cares very much about sustainability and the environment. So anyway, it got to kind of, yeah, the end of that. Ten years in traditional private practice and I thought, I'm so done with this. I was trying to find the next progressive place and I wasn't finding it. So I thought, I'm going to go do this on my own. I started off working out of the second bedroom of my apartment and was fixed fees from day one. Absolutely no hourly rate. We don't still to this day do not charge by time at all.
Nathan Bush: What's the fixed fee look like? Is that kind of like, here's the case or here's the assignment, we'll quote up front.
Marianne Marchese: Exactly. So we put a lot of work upfront with the client to get an understanding for not just the scope of the work, but what outcome they would like. And then we essentially price backwards from there with a fixed fee. So they have the certainty that they're paying for an outcome rather than paying for input, like how long something's going to take us.
Nathan Bush: Okay, cool. Yeah, that's a big change.
Marianne Marchese: Yeah, big change. It was almost unheard of at the time that I started legal I, which was 2017 and I also started as a completely paperless practice and we still are completely paperless.
Nathan Bush: Wow.
Marianne Marchese: Yeah. Really early adopters in the legal industry of technology. So this whole, you know, AI era has not been that confronting for us. Like, you know what, most of the tech we're using already have introduced AI tools into their own tech. So we're kind of just going along the journey. Yes. So, yeah, so that was really, as I said, very different at the time. And I was prepared to take a pay cut to do things differently. I didn't end up taking a pay cut, it just took off, started to grow very, very organically, but quickly because it was so different in the market. And now we're a team of 12 and have practices across commercial franchising, property and employment law.
Nathan Bush: Yep.
Marianne Marchese: And we work with some of Australia's very well known and most loved brands.
Nathan Bush: Awesome. Oh, I love that. I love that you're doing it differently. You are speaking our language. Tell me about also the challenges of rewriting the model because I assume that the model that you're trying to rewrite would have been a very male dominated and historic model.
Marianne Marchese: Yes.
Nathan Bush: Was that part of the challenge?
Marianne Marchese: It was very challenging, to be honest, doing things differently at a time where it wasn't really done before. I had to navigate the regulations and criticism slash feedback at the time. But I like for Docusign, for example, we've used DocuSign to sign contracts from day one and I was getting a lot of feedback, like, you can't do that. It has to be like a hand signature. I was like, you know what, I think everyone's negotiated this contract, has agreed to sign it. I don't think we're going to come unstuck by an electronic signature instead of it being wet ink. So I kind of just plugged on. I ignored the criticism and I was like, I think this is the way of the future.
Nathan Bush: Yeah.
Marianne Marchese: So I stuck with it. And also, just as a business owner, kind of balance the risk. Like, what's the risk here? And it was minimal. So I, yeah, plugged on.
Nathan Bush: I love that point because the more I've worked and the more lawyers I've worked with, the more I understand that law is more of a, you might not like this, but a recommendation rather than a black and white. It's like, this is where it's at. So the DocuSign is a great example. It's like, actually there is a recommendation that we do things this way, but it's not as black and white as everyone seems. Is that one of the challenges that you find, especially in retail and E comm, where you're giving advice, especially around things that are new, like AI and you're giving guidance, whereas clients are like, actually, I just want to know, can I do this or can I not?
Marianne Marchese: Can I do it or not? Yeah. A lawyer's favorite term is it depends.
Nathan Bush: Yes.
Marianne Marchese: And I try not to say it because it's so bloody annoying. I get it. But it really does depend every time. So, yeah, we also take a bit of a different approach with the way that we advise our clients because as you have alluded to, lawyers are often seen as the no police or they won't give you a clear answer. Whereas part of our vision statement is that bold ideas thrive. And so that's about enabling our clients to, you know, execute their vision while still remaining compliant and still future proofing their business. And we also adapt for each client. So some clients do want the straight answer. Just give it to me straight and I'll give it to them straight and I'll say, this is the risk of potentially, you know, doing it this way. So at least they're going in with eyes wide open and then they can make that commercial decision for themselves.
Nathan Bush: So it's a risk assessment?
Marianne Marchese: Yeah, absolutely. Like, I had a client call me the other night about a promo he was running in like 20 minutes time. If you want to do it the like, the perfect way, we need to draft right terms and conditions, get them on your website. He was like, that feels like a lot. And I was like, yeah, you know what? It is a lot. And I know your audience and they're not going to find the loophole. He's got a really, really great following, so just go for it. But just here are three essentials that you need to get include on your promo and go for it.
Nathan Bush: Yeah, I love that. That sounds like sensible advice, especially because you've got to understand who's actually using this and the risk of anything coming out of it. Because you can plan for every worst case scenario and you could cover your ass to the ends of the earth. But you probably legal terms will be 3/4 of the actual message then.
Marianne Marchese: Yeah, yeah, exactly.
Nathan Bush: Tell me about. You wrote a great article around Jeans west when it went down. Gosh, that was almost six months ago now. I think you alluded to the world's changing, obviously, AI, but we're also in a funny stage of retail at the moment where we've got a lot of legacy brands that are struggling or going under. Workplace is changing. Tell me about what do you feel are the three biggest legal issues that E commerce brands in particular are facing at the moment that you're working on?
Marianne Marchese: I think in particular for legacy brands. And this is not to take away from how hard it is to do business right now. Like the cost of living and cost of business are real challenges, but in particular for not just legacy brands. Actually, even for new E commerce brands, some thought has not gone into legal foundations. So for example, corporate structuring and structuring businesses for asset protection and minimization of risk. So often startups will be really excited about their new product or service and kind of they might start as a sole trader or with the structure that's just not really appropriate for where they want to go. So it's not really future thinking.
Nathan Bush: Okay, we might unpack that in a minute.
Marianne Marchese: Okay, lots to unpack there. And another area I see is protection of intellectual property that is tied to corporate structuring as well in some ways which we can chat about. And also not documenting everything, kind of, you know, handshake deals or winging it and not stopping to think about, for example, have I entered into an exclusivity agreement with my key distributor or my app developer, you know, just not documenting things and achieving early success and kind of just. Yeah, flying by the seat of their pants.
Nathan Bush: And is that the most dangerous time when you are starting something up and you kind of like just getting started and founders are busy and they're, you know, building and they're selling and they're doing all sorts of stuff and then all of a sudden the rocket ship takes off and those foundations aren't there and it's too late to go back and change them because we're well in the air by then.
Marianne Marchese: Absolutely. Yeah.
Nathan Bush: Tell me about those foundations. So if you were starting an E commerce business today, what are the essentials that you would have in place from a legal perspective?
Marianne Marchese: So I would get legal and accounting advice on the structure. They have to go hand in hand because one is about tax minimization, the other one is about asset protection and limiting your legal liability.
Nathan Bush: So in that case, you're talking about Being a sole trader versus being incorporation company.
Marianne Marchese: Or it could be a trust, or it could be a unit trust if you want to get investment in future. And there's no one size fits all. So not setting up in a way that, you know, Bob down the road set up and he's been really successful. It needs to be unique to your business model and to your vision, where you want to go. Yeah. And the other thing is intellectual property protection. So there's different types of ip, there's trademark copyright, patents, designs. You need to identify, firstly, what is your ip, what is it that you know you've got that's valuable and then the way that you protect that is different, depending on the ip.
Nathan Bush: How do you know what IP is? Because I think there's been a lot of retailers sitting on IP that they might not realize is actually ip.
Marianne Marchese: Yeah. I think just a good rule of thumb is if it's something that's a bit different and valuable, if you think it's valuable, it probably is. So find out how to protect that. But as a minimum, your business name, that's a trademark, that's a form of IP that you should definitely be protecting.
Nathan Bush: Okay. And for those who may not have done that, step and add to CART is not trademarked. So guilty.
Marianne Marchese: I can't help you with that.
Nathan Bush: Is it a complicated process?
Marianne Marchese: No, it's not a complicated process at all. It's actually quite simple. But you do need to get the right advice. I've seen trademarks that have been protected in the completely wrong class, which effectively means you've got no protection. So trademarks are registered in classes of goods or services, so you need to register in the class that's relevant for what you do. But yeah, it is actually a very simple process through IP Australia.
Nathan Bush: Cool. And do you find that they are generally, if they're set up right, enforceable? So if a competitor comes along, has a similar name, it's easy enough to enforce them?
Marianne Marchese: Yes, if it's protected properly. It is about enforcement, though. So no one's going to enforce it for you. IP Australia doesn't enforce it for you. So if someone has infringed your intellectual property, it's up to you to essentially write a letter of demand to that party and ask them to cease and desist and if they don't, to take legal action.
Nathan Bush: Okay. And while we're on ip, let's jump straight into the elephant in the room. The AI elephant. Lots of E commerce brands creating, whether it be product descriptions, imagery, social media, using AI tools. Is that if it is created via a third party AI tool at the instruction of the retailer, is that still considered ip?
Marianne Marchese: Short answer is probably not. The approach to intellectual property with AI is very unclear at the moment because it's only been around for a couple of years. But you can tell, you know, when something's been written by ChatGPT, it's got a particular style and terminology to it that it uses, so it's not original. Whereas in this case we're talking about copyright as the form of ip. And copyright protects the original expression of an idea. So like a novel or the content on your website, if you're the original creator. So ChatGPT's written it and it's probably recycling it for other people that are using it. It's very unlikely to be protected by copyright.
Nathan Bush: Okay, that makes sense. So a lot of what retailers might be creating today actually isn't ownable. Yeah, that's alarming.
Marianne Marchese: Yeah, it is alarming.
Nathan Bush: What about on the other side of that? Can retailers. So if they are putting a lot of intellectual property into things like photography, video, product design even, is there any way to protect it from AI that might be scraping or trying to gather that information to feed their own machines, to serve it up to others?
Marianne Marchese: This is actually quite topical because there's some very popular apps that people use to generate images and it comes down to the terms and conditions of that app. So some of those popular apps will say that anything you put into the app belongs to the app. So if you've created a work of art, probably avoid putting it into, you know, something like Capcut, for example, because they don't necessarily own the ip, but you give them a license to use it, which means their customers can use it, their users can use it, and it's recycling your IP and then it's out of control. It's very, very hard to protect anyway and to monitor. But yes, images, photography, videos, they are protected by copyright. So if you're the creator of that, then that's your copyright. So be careful how you disseminate it.
Nathan Bush: Yeah, I know. There's a real tension at the moment, especially in larger businesses of employees, especially in E, comm and digital, who might be using AI tools at home and experimenting and playing. And then when they get into the workplace, there is some pretty stringent rules around what can be used and what can't be used. And some of their favorite tools often are outlawed for reasons. Like you said there, what's your approach for organizations putting kind of blanket AI rules over their teams around allowing them to experiment with tools, but also not falling into that trap of giving away confidential data or names or ip.
Marianne Marchese: Yeah, you need a policy and again, it can't be one size fits all. So have a think about how you're using AI within your business, to what extent you're happy to allow it to be used by team members and write it down, just do a brain dump and then you can tidy it up using ChatGPT later.
Nathan Bush: They can steal that policy, they can have it.
Marianne Marchese: But then there's other things you can do as well, like locking down certain app tools. So for example, at Legal it, we've got a very specific legal AI tool. Currently we're experimenting with it. So currently only I have a license to use it because I want to be able to, you know, control how are we going to actually use this within our firm before I kind of. Yeah, let the horse run.
Nathan Bush: Yeah.
Marianne Marchese: So that's something to consider as well, is kind of locking it down to certain people until you're very clear on how you're going to allow it to be used.
Nathan Bush: I love that. You know, you mentioned before that you're paperless and you're well on the AI adoption trail. You mentioned that. All the details in the terms and conditions. No one reads the terms and conditions except for lawyers. I assume you've been deep in some of the most popular AI tools. Are there any that you go. Actually the TNCs on these common tools are really reasonable and there are others that you just wouldn't touch with a ten foot pole.
Marianne Marchese: No, to answer your question, and most of the T's and C's, they will go through so many iterations I think in the next few years. It's kind of a free for all at the moment and the AI tools know that. So people aren't going to not use something because of its t's and circumstances. Alarmingly though, Sam Altman, the CEO of ChatGPT, recently said that anything that you put into ChatGPT could potentially be discoverable. So what that means is that like if you put. Yeah, potentially confidential information into ChatGPT and there's court proceedings at some point in future on any dispute, your ChatGPT chats could be discovered in court.
Nathan Bush: So it could be a sign of intent.
Marianne Marchese: Yeah, yeah. Or you could inadvertently disclose something in court proceedings that you didn't want to be out there and disclosed. So being really careful with what you input as well, just from a privacy point of view and protecting yourself in
Nathan Bush: the future, that's alarming. For those who are using gbt as a therapist?
Marianne Marchese: Yeah, gosh, yeah, I read that and I was like, oh, shit, can I clear my history?
Nathan Bush: Oh, wow. Okay. So you're advising to have a clear policy around AI tools. You're advising to have a senior person to be the one who's using it and to understand it before disseminating out into the team any other kind of guidelines that you give to your clients from a legal perspective on how to keep up with AI adoption but not put themselves at risk.
Marianne Marchese: Quality checking. Honestly, so many people are using AI tools and not fact checking or quality checking and it's embarrassing, you know, and there have been some lawyers that have done that and used cases as precedents in court proceedings that just simply did not exist. And that's on the public record and it's very, very embarrassing, obviously. So, yeah, just quality check everything. And also, if you're using it to write content, go over it with your own eye and give it your own voice as well. I mean, this is not a legal tip or a common sense tip, it's just a common sense tip, you know, because we are at risk of just being inundated and flooded with same. Same.
Nathan Bush: I mean, LinkedIn's a punish the moment, isn't it?
Marianne Marchese: Absolutely, yeah, absolutely. I refuse to write any of my posts using ChatGPT at the moment. I will write it myself first and if I need to tidy up some wording, I'll use ChatGPT. But just. Yeah, just kind of taking the time to bring the human back into it.
Nathan Bush: Yes. I'll tell you what I love. I love this combination that I've got at the moment of whisper flow, which I've spoken about before, but it's basically turns your function key into a dictation. AI dictation, which again, could be very dodgy if it comes back to bite
Marianne Marchese: me,
Nathan Bush: but it allows me to get thoughts down really quickly so that when I am using AI tools, I can give it proper briefs rather than trying to type everything out. I'm like huge thought dumps. So the prompts that I'm giving it are pages or paragraphs long to get the actual proper output in my voice because it learns my tone of voice in how I speak.
Marianne Marchese: Oh, wow.
Nathan Bush: So you kind of get in the best of both worlds without it taking you forever. But then you've got my multiple tools. Getting your ip, I suppose.
Marianne Marchese: Yeah. Getting all your ip. Yeah, we'll figure it out.
Nathan Bush: I've got a podcast. If the bots really want to imitate me, they've already got it oh, they've got it.
Marianne Marchese: They've got so much data on you.
Nathan Bush: Exactly. Oh, I'm out there. All right. I want to kind of dive into some specific things around Ecom that aren't necessarily AI related. Some of the most basic things in E commerce that we see in every footer of every E commerce page that they don't get a lot of conversation about because they're not the sexiest things. Things like terms and conditions pages and privacy policies. Do you feel like they need to be heavily customized for each brand or is there sort of a template that you can use?
Marianne Marchese: There are absolutely. There are templates. There are so many online now. But more importantly, I would now encourage businesses to don't even bother with T's and C's and privacy policies if you're not going to do the work in the background to make sure that you're actually practicing what you preach. So for example, businesses will have a privacy policy and it says this is how we collect information, this is how it's stored, this is how we, you know, delete your personal data. They don't do any of that. So don't have the privacy policy because you're outright just contradicting yourself with what you're actually doing in practice. So get the foundations right first, do the practical stuff first and that's best practice and then just document what you're already doing.
Nathan Bush: Yes, okay.
Marianne Marchese: Same thing with T's and C's you know, like you might have a refund policy in there and there are laws around when you do need to refund and often businesses will have the correct wording in their T's and C's but then they don't actually comply with their own refund policy. So just get it right first, otherwise honestly, don't even bother.
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Marianne Marchese: Yeah.
Nathan Bush: You talked about returns there from a returns policy. We're seeing a big change in returns around Australia around less retailers offering free returns. I think it's down to about 14% of Australian retailers are offering free returns now.
Marianne Marchese: Wow.
Nathan Bush: Yeah, it's really low. It came out of the last ship it report and I think it's a little bit different in fashion obviously because there's still that expectation that I can send back change of mind or does not fit. So slightly different there. But I don't think a lot of retailers understand the difference between change of mind refunds verse. I don't know what you call. You call it quality or breakages, repairs, faulty products. Exactly. Can you give us a little bit of an overview on the differences there and the obligations for retailers?
Marianne Marchese: Yeah, of course. So legally there is no obligation to refund for a change of mind. Retailers will do it as a nice to have and as a value proposition. Legally, what you do when you do have to refund, it's because the product was faulty or it didn't match the description. And if it's a major problem, the customer can choose whether they would like a refund or a replacement. If it's a minor problem, usually the retailer will choose what they would like to do, whether it's to refund it or not. But retailers do get this wrong very often. Faulty products are not subjective. If something's faulty, it's faulty. To give you an example, I bought a pair of shoes online. They arrived, the shoes were absolutely fine, but the shoelaces were torn and they were pink shoes and pink shoelaces. So it's not like I could just go out and buy, you know, replacement shoelaces. So I wrote to the retailer and I said, I'm happy to keep the shoes, but can you send me shoelaces to replace them? And they said, oh, we don't have shoelaces, just like, you know, to replace. And so I said, okay, well what are you recommending? And they said, nothing. Essentially they weren't going to refund, they weren't going to replace the entire, you know, shoes, pair of shoes and the Problem with that is I know that's illegal, but I'm not going to. I can't be bothered having a fight about shoelaces. So I copped it. You know, their behavior was illegal, but I copped it and I went out and, you know, found pink shoelaces online. And this was a big retailer. It's something that big, small retailers get wrong very often and I will never buy from that retailer again. So even if you've broken the law and you've had no repercussions, legally, that's one thing, but the other thing is the customer experience and your reputation in the market.
Nathan Bush: Yeah. Some of the best brands that are known for their customer service, I've had this come up twice now, is one of their key policies around customer service is if you're in doubt, be generous.
Marianne Marchese: Yes. And it's not that hard and you'll keep coming back. So. Yeah, there are lots of retailers that do that really well and go above and beyond the minimum legal requirements. So that's good to see from an
Nathan Bush: ACCC perspective, the one that we're all scared of. I'm seeing a lot still coming through around breakages to the Spam Act. From an ACCC perspective, is that the main area that you're seeing at the moment for retail or where are you seeing the biggest risks?
Marianne Marchese: Yeah, I have seen a bit around the Spam act, so there, I guess it's making sure you've got the right opt in process to your marketing and opt out importantly as well. But another area that I'm seeing and the ACCC is focusing on is using influencers in your business. Actually huge. They've got a huge focus on it at the moment. And something that a lot of businesses don't realize is that if an influencer misrepresents your brand, the responsibility doesn't fall on the influencer, it falls on you as the business.
Nathan Bush: Wow.
Marianne Marchese: Even though you're not the one that's literally in most cases telling the influencer what to say, but the fallback is
Nathan Bush: still on the business, even if the influencer is posting on their own channel.
Marianne Marchese: Yep, yep, absolutely. So if the influencer has been, say, gifted a product and misrepresented your product and you've engaged them to do that. I'm not talking about scenarios where, you know, influencers have just gone off their own bat to represent a business that the business has had nothing to do with. But if the business has engaged an influencer to promote their product, then the business really needs to give the influencer some Guidelines around what they can and can't say.
Nathan Bush: Okay, and what are your typical recommendations for businesses that are engaging influencers at scale? Do you suggest that they approve every piece of content before it goes out?
Marianne Marchese: No, not unless it's easy and practical for you to be able to do that. So if you're a small business and you're working with one influencer, sure, just check it to rubber stamp. But no, with some of the businesses that we work with, they're quite large and they've got multiple influencers on the go or a big campaign, and that's not practical. So what we recommend in that scenario is giving the influencer some guidelines. Best ideal case scenario is that you actually have an influencer agreement with them as well. Though understanding that might not always be practical and it might scare the influencer away. But there's really clever ways that you can give influencers those guidelines. So it doesn't just have to be writing. You could do a video, like a five minute video. Hey, you've signed on as an influencer. Here are some expectations that we've got and just some bare essentials, like noting that it's a paid partnership or a sponsored ad on social media.
Nathan Bush: Yeah, okay, that makes a lot of sense. Your comment there around scaring influencers away with agreements, it prompted another question that I had earlier, but I didn't ask you. When you're writing agreements, whether that be contracts or terms and conditions that are meant to be read by other people, but they seem hard work or they seem, you know what I mean, just overwhelming.
Marianne Marchese: Yeah.
Nathan Bush: What's your take on making them more accessible? So we see some brands write terms and conditions that almost feel conversational because they want customers to read them and to understand them and others who you can tell it's been written by an old school lawyer and it's got 1.1 and clauses and all this sort of stuff in it, what's your take on that? Should you actually be making agreements to be as readable as possible?
Marianne Marchese: Yes, absolutely. Absolutely. I'm a huge advocate for plain English legal agreements and terms and conditions. That's one of our other unique value propositions that we've been doing from day one. We've won awards for plain English champions.
Nathan Bush: There's awards for that?
Marianne Marchese: Yes, there are.
Nathan Bush: Brilliant.
Marianne Marchese: There's an award for everything. And we've trained other lawyers as well on how to write, you know, in plain English. So it's something that we're really passionate about and it is a bit of an art. So you want to write In a way that doesn't lose enforceability and legal meaning, but in a way that is still accessible, as you said. And the reason for that is not just to reduce overwhelm, but it's also looking at, just looking at the demographics of Australia. You know, there are some people who have different cultural backgrounds. English might not be their first language. It's not fair that they should be given an agreement that they can't understand because, you know, English is not their first language. Or just people from different demographics who may have never dealt with lawyers before. Yeah, that can be quite confronting and overwhelming for them if they're getting a legal agreement that is gobbledygook. So, yeah, it's about accessibility and equity. So, yeah. And there are really fun ways as well that you can draft agreements. I'm obviously a bit of a legal nerd, but, you know, you can have a bit of fun with your agreements. If you look at our terms and conditions on our website, they've got a couple of like witty jokes in there.
Nathan Bush: Oh, cool.
Marianne Marchese: I've seen other brands that have done that too, I think.
Nathan Bush: Go to skincare, do it really well.
Marianne Marchese: I was going to say goto, do that really well. Yeah, they're a great example.
Nathan Bush: Yeah. Okay. The question that is always there, right, because I've done this a few times, is to look at the terms and conditions. Go. We've really got to write this and humanize this. I get shit scared around what becomes enforceable and what doesn't. How do you frame that in your mind around, you know, when you write it legally and you spend 10 minutes understanding what it says, you're like, oh, cool, this is pretty watertight. Whereas sometimes if you're using plain language, it doesn't feel as watertight. How do you qualify that?
Marianne Marchese: Yeah, like I said, it is a bit of an art. So as lawyers, we're trained to think about worst case scenario. So you can always write worst case scenario in plain English as well. There's no reason you need to use legalese like, you know, henceforth and thereof and aforementioned. There's other ways of saying things that are still plain English and still have the same effect.
Nathan Bush: Yeah, okay, that makes a lot of sense. Although I will miss those words.
[Voiceover]: They're lovely words.
Marianne Marchese: Yes, they're very, very dignified.
Nathan Bush: Coming up to Black Friday, Cyber Monday and peak season, there's going to be a hell of a lot of discounting. I feel this year. There's a lot of people who have kept their powder dry and survived this year, and there's A lot riding on sales and promotions. Well, firstly, where do you look from a legal perspective? What are the biggest risks in running promotions and spending a lot of money getting them out there? Where do you see retailers often getting this wrong?
Marianne Marchese: I often see. And the ACCC is also monitoring discounts that are not actually genuine. So being really careful with. And Coles was in the news for this recently, you know, saying statements like this was priced at X dollars last week and it's now discounted to whatever.
Nathan Bush: I love the price check guy on TikTok. He's my favorite.
[Voiceover]: Have you seen him?
Marianne Marchese: No, I haven't seen him.
Nathan Bush: He's got this little script that he runs and it's like this little browser and he does these TikTok videos that goes, oh, Coles just came out with cheese sticks that are this. But let's go back and have a look at their price. And we can see that they've dropped it for two weeks, which is the minimum.
Marianne Marchese: So they could say it was a discount. Yeah, they got into trouble for this. Yeah, that does this.
Nathan Bush: That's all he does. His TikTok videos are just looking at promotions and then unpacking like the price history of them.
Marianne Marchese: Wow, that is so clever. I love that.
Nathan Bush: And even things like Cadbury come out with a new block of chocolate that's a brand new size and they market it as this is fantastic. And he goes, actually, let's have a look at what they've taken off the shelves.
Marianne Marchese: Yeah. And it's like smaller and then same price. Yeah, yeah. So these are the areas to be really careful with. If you are discounting, go for it, but make sure it's a genuine discount is the first thing. And the second thing is be really clear about how long the offer's lasting and have terms and conditions around the offer especially. Yeah. During Black Friday sales, people are looking for great offers and discounts and things and they might have gone a bit, you know, trigger crazy during the sales and get buyer's regret. So you want to make sure that your T's and C's are going to protect you from that as well with things like refunds as well, as we were talking about earlier, you know, how are you going to deal with refunds during that campaign?
Nathan Bush: Shopify is committed to keeping their merchants at the cutting edge of innovation. And the features released in their Summer 25 edition are no different as they give brands the tools that they need to work smarter today and thrive in the future. For example, Shopify's AI tool Sidekick just got a lot Smarter, it's able to synthesize data from multiple sources simultaneously. Moving beyond basic Q and A to solve complex business challenges, they've also made scaling globally even easier. With Shopify payments, you can now manage various business entities and settle up in multiple currencies from a single store. And for Instore, POS has been redesigned, making the day to day experience for
[Voiceover]: retail staff easier with improved search, intuitive
Nathan Bush: navigation and a more flexible cart. Check out over 150 features that have been released by searching Shopify Summer 2025 Edition. One of the trends that we're seeing around big promotional periods at the moment is this big, almost like a teaser campaign for them. So it's like LSKJ are the masters of this. It's like, you know, big sale coming up, they'll tease the community, tease cities, build this immense hype and then have a drop that might be gated or on an app or something and then they'll sell out really quick because they've done such a great job hyping it up. Is there any obligation on retailers to have a significant amount of stock for big sales?
Marianne Marchese: Kind of, yes, it depends.
Nathan Bush: It depends, yes, we got one. That was my goal, to get an it depends out of you.
Marianne Marchese: Yeah. So yeah, like obviously don't have absolutely minimal stock and then do this massive campaign and you can't support the campaign. But if you've got a lot of stock and the campaign's just done really well and you've sold out, sure, that's fine. Like you can't control that. You've just had a great response to your campaign. So yeah, so make sure your stock is kind of balanced with the campaign that you're running. And the other thing is make it very clear that this offer or campaign is while stocks last and a lot of businesses miss out on that. And that's so easy, so easy to do. Or it might be like a limited run, you could say limited availability. Or this is a premium edition product. Yeah.
Nathan Bush: So being clear, we've obviously got some big changes coming up in social media. I think it's next year the policies come into place for kids and social media in Australia. Is this coming up in your conversations at all with retailers at the moment or is it too far off?
Marianne Marchese: No, it's not too far off. It's a hard one to navigate at the moment though, because so far businesses have, you know, marketed and made their if they've got apps accessible to everybody and now they really need to start thinking about how do we manage this. So we're not inadvertently in breach of these laws. So some businesses are starting to deal with it. And for example, restricting promotions to only over 18 or over 16. But there's the. Yeah, so far there's not much you can do to kind of lock down your promotions or your marketing.
Nathan Bush: You're relying on the technology to do it for you.
Marianne Marchese: Yeah, absolutely. But being careful, I guess, with what you are putting out there as well, just as a responsible business and being mindful of who your audience is and
Nathan Bush: yeah, yeah, I want to go back to the legalite business and because you've set this up so differently and I think there's a lot that we can learn from your approach when you talk about going paperless and automating as much as possible. You mentioned their DocuSign as a key tool that you've used. What other tools are you using in your business to either be more efficient or to help communication between the team?
Marianne Marchese: We currently use Microsoft and I think we're only scratching the Surface, honestly. There's so much more we can be doing with it, but we stay connected. Our team is hybrid and some are completely remote, so we do rely a lot on teams to stay connected with each other during the day. But I am currently looking into AI agents as well that can work with the platforms that we've got. And we do use multiple tech platforms, as I mentioned earlier, but we're looking at AI agents that can connect with all of the platforms we do and reduce some of the manual processing. We're also looking at Co Pilot within Microsoft Outlook that can draft initial replies of emails, which I'm hoping is going to be a lifesaver for me because my inbox is a dog's breakfast and it always has been at the bane of my existence. So if I, you know, that co pilot could just draft the replies and then I can check and hit send. That would be amazing. So watch this space.
Nathan Bush: I literally started this week and it probably breaches all the advice that you gave earlier using Superhuman.
Marianne Marchese: Oh, yeah, yeah.
Nathan Bush: And so far, so good. But it hasn't learned me enough to be able to write for me. But I'm finally at Inbox zero and I haven't been in that for years.
Marianne Marchese: No, stop.
Nathan Bush: Yeah. Wow. It kind of puts everything aside that I don't need to see in front of me right now. It doesn't mean it's not important, but you know when you just keep things in your inbox and you go, one day, I need to get back to that.
Marianne Marchese: Yes. Oh, my gosh. Yeah. I've Got a to do so subfolder. And then things just go there. To die.
Nathan Bush: To do die.
Marianne Marchese: To die.
Nathan Bush: Yeah, to die.
[Voiceover]: I love it.
Nathan Bush: I studied law for a year and a half.
Marianne Marchese: Oh, did you?
Nathan Bush: Yeah, when I first got out.
Marianne Marchese: But you saw the light.
Nathan Bush: Well, I don't know about that, but I just remember going, I couldn't imagine being a lawyer and having to read as much as I was required to read back then. Like, I remember coming back from uni and literally taking huge amounts of books that was so thick and having to do the pre reading and they were big, long tort cases and all that sort of stuff. And I was like, oh my God, I can't bury myself in that.
Marianne Marchese: Yeah.
Nathan Bush: Is it very different now in terms of. Or do you foresee it being very different in that LLMs will be able to summarize and obviously there's risks along with that. But is there still that very manual head down understanding?
Marianne Marchese: It is still very manual head down and case law as well. So they still very long and yeah, judges write them really long. So I think reading will always be quite heavy in law, but I think AI tools will help to summarize data. They're not quite there yet. I've been experimenting with that as well. They're not great.
Nathan Bush: Can't trust them yet.
Marianne Marchese: Yeah. It can't replace the actual reading as yet. But yeah, I mean, I resonate with that. In uni I did so much reading and I. I couldn't even read fiction books at that time of my life. Like just exhausted from reading.
Nathan Bush: Yeah, I just don't have the attention span now. One of the things that I wanted to discuss with you before we wrap up was do you call it parental leave? I think you've rewritten the rules on this, which I thought was fascinating. Tell me about what you've put in place for your team because I think you're really leading the way on this.
Marianne Marchese: Oh, thank you. Yeah. So we do have a parental leave policy that I introduced a couple of years ago that is gender neutral. However, More recently on the 1st of July, I introduced a fertility and reproductive health leave policy. And that was kind of off the back of my own journey with fertility some time ago now. But I struggled to fall pregnant with my first and. And spent three years going through fertility treatment and ultimately IVF and then happily had my first baby. And I felt very grateful that I owned my own business at the time and I was able to have the flexibility and the freedom to go through that process without, you know, having to take leave or having to, you know, talk about a topic that is still quite taboo.
Nathan Bush: It is still taboo, isn't it?
Marianne Marchese: Yeah, it is. So I'm really open about talking about it because I think it's one in seven people go through fertility struggle.
Nathan Bush: Wow.
Marianne Marchese: It's a lot bigger than I thought about it. Yeah. And then add to that, I also have endometriosis, which I didn't actually realize until I was going through ivf. And as women, we go through our careers with the expectations that we need to just suck it up and, you know, keep going through, whether it's menstrual pain, perimenopause, menopause. And a lot of women are retiring early because they can't stick around the workforce for that long and have to grapple with their reproductive health. So I introduced this policy that is 12 days of paid leave per annum covering fertility or reproductive health needs. And that's in addition to sick leave or annual leave to give my team as well that same freedom and flexibility that I enjoyed to navigate a very significant life moment for me and, you know, other life moments that other people will experience their career.
Nathan Bush: That's amazing.
Marianne Marchese: Thank you.
Nathan Bush: And do you find that that has opened your team up or like, not in terms of like sharing everything, but it's like, actually, no, I'm in pain today or, you know what I mean, I'm not feeling great because.
Marianne Marchese: Absolutely, yeah. I mean, we are already pretty transparent with each other. We're a very close team. And that is, I feel, because I also role model that vulnerability within my team. Like, I will tell my team I'm keeling over with Endo at the moment, I'm going to take 20, so they feel also safe to, you know, communicate if they're going through something. But yes, I have had a couple of staff say, this is just going to be so great for me because they do suffer from extreme menstrual pain or whatever it is.
Nathan Bush: So, yeah, amazing. I love, I love that you've not only gone out and done your own thing, you're rewriting the rule book on what law can look like, what business can look like. And you're really challenging some of the longest held conventions in a very old industry.
Marianne Marchese: So thank you. And as you said earlier, it's such a male dominated industry and it was designed by men for men. So, yeah, I am really passionate about changing it. So it's not necessarily taking away from anybody else's rights, it's actually making it more equitable.
Nathan Bush: Yeah, no one can complain about that. Marianne, before we leave. We've covered so much ground in that hour. If we have retailers who are listening to this and are thinking about, wow, there was so much there. If there were three pieces of advice that you gave to them to make sure that they've got themselves covered from a legal perspective, what would your piece of advice be?
Marianne Marchese: I would suggest that have a look at where you're going, what's your vision, and work with a really great lawyer to work backwards from there. Like, are you actually set up to get there? And that might be who's your biggest supplier or distributor or developer? And have you locked them down? And when I say lock them down, I mean, what's your agreement with them?
Nathan Bush: You know, get married properly.
Marianne Marchese: Yeah, get married properly. Yeah. Get a prenup. But yeah, so look at your documentation. And for legacy brands as well, I would really recommend now is the time to be looking at the way you do business. You don't need to do business the way you've always done it. There are ways that you can minimize risk so that you can actually be a sustainable, lasting business. And we can take some learning, you know, from Jeans west and there are other legacy retailers that have gone down, take those learnings and, and look at what are some different ways that we can do business in 2025 and beyond.
Nathan Bush: Love it. There's so much good advice there. If I was to take one thing, it was don't be afraid to humanize what we're doing because essentially it's another part of communication, customer service relationships. But you might need some professional help to do that. But there are ways to do it. Marianne, if people want to get in touch, what's the best way to reach out to yourself or the team?
Marianne Marchese: Yep, absolutely. You can contact us@helloegalite.com or via our website. And we're also on Instagram Legaliteau.
Nathan Bush: Amazing. Well, thank you so much for joining us. And thank you so much for not charging me in six minute increments for this conversation.
Marianne Marchese: My absolute pleasure to be here. You should be charging me.
Nathan Bush: Well, I learned a lot and now I'm going to go turn off all my AI tools, so thank you very much for that.
Marianne Marchese: Yeah, totally. Me too, actually.
Nathan Bush: Thanks for joining us on Add to Cart.
Marianne Marchese: Thank you for having me.
[Voiceover]: I promised you that Marianne would only say it depends once.
Nathan Bush: And she did.
[Voiceover]: She even pulled herself up on it. But how good was Marianne at pulling back the law and making us understand what is truly important?
Nathan Bush: What is it that we're trying to do?
[Voiceover]: Who is it that we're trying to protect and what outcome are we after? And putting it in a really practical way that allows us to take action, but understand the risk involved because essentially that's what it is at the end of the day, a risk mitigation exercise for everyone involved. All right, here are the three lessons that I took away from my chat with Marianne. Number one, get your legal foundations right. I know that when we are at the start of a new business, business or a new project, we want to dive straight in, right? We want to be creative, we want the ideas, we want to get things moving. But there needs to be a point in all of these, no matter how big or small, where we need to stop and do a check on what is required from a legal foundation, whether that be partnership agreements or whether that be competition terms and conditions. It's so important to get these right. Hopefully, hopefully once you've got your style down pat, it's not a huge deal to do over and over again to make sure everyone involved is protected, but it's so important to have this as part of your process. Anytime that you're embarking on a new endeavor that could have some legal complications, make sure you take the time and get the advice if you need it. Number two, protect what is valuable, just like you would around your home. If you're looking around your home thinking, oh, what should I I ensure here? Have a think about that. In your business or your work, what is it that you work with day in, day out that is valuable to your business and you need to protect? Whether that is data, whether that's trade relationships, whether that's customer relationships, make sure that anything that you rely on and that is crucial for your business is legally protected. That might mean making sure that agreements are watertight, making sure that terms and conditions are outlined, making sure that your team know what's expected. From a legal perspective, it's worth doing an audit on what the most valuable assets are in your business. And just like you would with your house, make sure you legally insure them. And number three, match policies to practice. I really loved this. There is no doubt, and we've all seen it, that it's very easy to copy terms and conditions and privacy policies from other websites, or you might turn to chat GPT and ask it to spit you out. What is best practice around these simple documents? However, it's going about it the totally wrong way because they're going to make up a whole bunch of policies and a whole lot of practices in your business that might not even exist. Marianne's advice was brilliant. Don't start. Start with the terms. Start with what you're doing and how you're actually approaching data privacy, returns, shipping, all the things that you're doing in your business and then turn them into legal policies. Don't do it the other way around because if you start there, that will expose the gaps. And first, before changing your policies, you've got to change your practices. Great advice. Thank you so much to Marianne for joining. I told you it wouldn't be so painful to have a lawyer on. In fact, I'm already thinking, who's the next lawyer we can get on? That was great. If you are wanting to discuss anything that you heard out of the show today, especially maybe you might have some questions out of today's episode that you want to test with other retailers, make sure you come on over and join the Add to Cart community. You can sign up from addtocart.com There are almost 500 other retail professionals in there that you can bounce ideas and questions off right now. And as always, if you enjoyed what we brought to you today, please hit that subscribe button. It really helps us keep bringing you the free stuff to help you in your e commerce career.
Nathan Bush: Thanks again for listening. And until next time, keep those customers adding to cartoon.
