UNSHAKEABLE: June 17, 2020

On June 17th, 2020, a group of extraordinary entrepreneurs joined us for at Unshakeable for a round-table webinar that focused on humility in leadership. Speakers including Greenlight founder Keith Ferrazzi, Square co-founder Jim McKelvey, Foundry Group co-founder Brad Feld, Edward Jones managing partner Penny Peggington, Benson Hill co-founder Matt Crisp, and iSelectFund CEO Carter Williams discussed how to use these next few months to foster opportunities for regeneration and innovation.

McKelvey defined the entrepreneur as someone who does what has never been done before. Companies that try to create things that are fundamentally different sometimes fail, but it is in this pursuit that we innovate. Our entrepreneurial success can best be fostered through strong interpersonal relationships. You’ll need the very best employees and partners to rise above the competition.
Crisp reminded us that while some people can’t adapt to the dynamics of entrepreneurial workplaces, many people feel liberated by them. This is the type of employee we want, one who possesses a growth-focused mindset and a willingness to change. Of course, Crisp did his due diligence looking at their resumes too!
Once we have these employees, we need to define expectations. As an entrepreneur, you and your workers are bound in a social contact that defines the expectations both groups have of themselves and each other. Ferrazzi encouraged all of us to spend the next two months ‘recontracting,’ or renegotiating those expectations. Through recontacting, you can push your employees to look for unexpected growth and engage in collaborative problem solving. Including our teams in discussions can thus cultivate good behaviors.
Through demonstrating our own radical adaptability and agility, we lead by example, leading our teams and organizations to follow our lead. While we won’t gain all that agility overnight, we must use small practices to encourage the right mindset on our own part. As Ferrazzi says, “we don’t think our way into a new way of acting. We act our way into a new way of thinking.”
Ferrazzi encourages us to use “co-elevation,” or using your leadership role to infuse accountability into the team, instead of wasting time on delegating authority. Through peer-to-peer accountability, the team will find ways to lift each other up. We give too much weight to authority and spend too much time figuring out who has it. Instead, through co-elevation, you can encourage humility and co-creation.
Ferrazzi offered some tangible exercises to help make it happen. For example, you can lead your employees in a ‘bulletproofing’ session, where everybody talks about the critical hills they’ve been facing, and then break into small groups to discuss the hard steps they will take to remedy those hills. Crucially, everybody must feel comfortable speaking without repercussion.
You must remember that Inn the best innovation will come from you, not existing big business. Williams encourages you to find investors in ‘your space,’ whatever industry that may be. Don’t expect them to all say yes instinctively, but always keep trying. And remember that empathy is the most important tool to recalibrate our leadership. “We are in the same storm but we’re all in different boats,” as Pennington said.

Unshakeable: June 3, 2020

            The latest Unshakeable session took on a town hall format, featuring an incredible group of entrepreneurs from St. Louis. The speakers included Bob Chapman, CEO of the Barry Wehmiller group, Jim Kavanaugh, CEO of World Wide Technology, Chris Zimmerman, CEO of the St. Louis Blues Hockey team, Alaina Macia, CEO of MTM, Inc., and Andrew Martin, Chancellor of the Washington University in St. Louis. I was thrilled to hear their thoughts about what it takes to be a responsible leader.

            Bob Chapman said we often view leadership as a responsibility, but it’s also a privilege. In other words, we have the responsibility to give our workers grounded hope, but we have the privilege to watch that hope turn into growth. As the world changes around us, it’s our responsibility to provide stability to our businesses and workers. Jim Kavanaugh insightfully notes that a balance of rigor and innovation will successfully lead us through change.

            In order to adapt, we have to help our workers engage in a positive work culture. Chris Zimmerman has learned through experience what it takes to build a great work culture. Often times, we allow a culture of complacency to take hold, perpetuated by the notion that any individual problem can be passed onto some other worker. Nobody wants to deal with it themselves, and everybody has a reason why a problem that affects everybody is really somebody else’s problem to solve.

            Leadership is necessary to fix that. It’s our job as entrepreneurs to break down silos and redefine the work culture into something that encourages everybody to be successful. Breaking down silos is easier said than done, of course, but we’re all gifted with the one tool necessary to make it happen: communication. By talking to our workers, we can provide clarity of purpose.

            Bob recommends that instead of talking to our workers about winning, we should talk to them about playing their positions. All of our workers are on the same team, and we’re all responsible to the team’s success. That’s how we all earn our livelihood!

            Of course, not all workers understand that team mentality. Sometimes, we have to let the workers know they’re not carrying their weight. “It’s not about being nice; it’s about doing the right thing,” said Bob. It can be difficult to balance your loyalty to old employees with the rising talent of new employees, so we’ll have to lean into those difficult conversations, and create a culture with a “spirit of no surprises,” as Jim calls it.

           We have to allow that communication to go both ways, however. Alaina Ma

cia has had such success in her business because she listened to her employees. She used to feel the need to rush. But if workers view you as a sort of taskmaster, they will give you the bare minimum in return.

            Andrew Martin noted that some areas require excellence, while others require proficiency. Often times, a B+ job is good enough. But “leadership requires creating leaders below you who can do the job in case you get hit by a bus,” and that requires excellency. By listening to our employees, and then staying intentional as to who we are investing in, we can create successful work cultures where leaders are created, workers are productive, and everybody feels cared for.

If you have enjoyed our sessions and these articles, please let us know by visiting our website, www.AEGISLAW.com.

Unshakeable: Jack Daly

There were lots of entrepreneurs who spoke at Unshakeable, but none characterized my thoughts on living through COVID-19 better than world-renowned sales trainer Jack Daly. He appeared just days after surgery with his head elegantly wrapped in gauze….. He understands that we have to both take care of ourselves and stay focused on our businesses. As he said, “I don’t have time to stop for a pandemic. I have things to do.”
To balance between life and work, we’ll need to focus exclusively on what we can control. That means preparation, not indecision. Jack’s optimism reminded me that there’s so much we can do with our time!
For instance, you can build a playbook of best practices, just like a sports team would. If you’ve already done that, try recruiting people to join your business, a timely tactic since so many are in need of jobs. Networking is everything in business, so this is a great time to reach out to clients, collaborators and investors too. By staying focused on the controllable things, I know I’m doing all I can for my clients, my family, my business, and myself.

Unshakable: Todd Herman

Todd Herman, one of the speakers to join us last week for Unshakeable, thinks of himself as a “performance guy.” It makes sense, since he often works as a life coach for athletes. He understands that the best performances come out when you’re having fun. “You have to enjoy the process to mitigate stress,” Todd said.

            The military-derived idea of VUCA is important to Todd. VUCA is an acronym for volatility, uncertainty, complexity, and ambiguity; it refers to the world conditions that make leadership difficult. It’s a timely idea, especially now in the midst of COVID-19, when the rate of change in the world is so rapid. But Todd sees an antidote to VUCA in strategy-focused leadership.

            Todd says there are 3 types of ways that people have responded to crisis: fear-focused, unfocused, and strategy focused. Fear-focused people consume popular media through the crisis and implode with the overload. They use negative language and have poor mental health due to the negativity.

            Unfocused people have no plan at all. They’ve largely experienced reduced working hours, but instead of responding with action, they wallow in denial. They remain inert. In contrast, strategy focused people are shifting within a week of the shutdown. They move ahead, remain optimistic, and reduce revenue loss.

            Todd wants us to embrace that strategy-focused mindset. During his speech, he gave us one way that we can start doing that. When we’re faced with a decision, we have to answer four questions: what will happen if we do make this decision, what will happen if we don’t make this decision, what won’t happen if we do make this decision, and what won’t happen if we don’t make this decision. This process will give us clarity. It helps us see what problems we are facing, and how we can solve them. And that leads us to resolution. As Todd says, “you cannot solve a problem you’re not willing to accept.”

Unshakable: Dan Martell

The second entrepreneur to speak at Unshakeable was Dan Martell, a major investor in software and technology companies. Dan covered a few topics during his speech, but I was most interested in his 5-step ‘Scaling Credo,’ which is his plan for scaling and growing businesses.
First, Dan recommended we find our ‘perfect fit’ customer. Every company has a unique customer to match. It’s our job as entrepreneurs to know the details on them. By understanding them, we understand our customers’ thought process, and therefore how to best speak to them.
Next we focus on product. We only focus on one, because if we have too many, we’ll be spread too thin. So, we ask ourselves, “which gets the most results? Which has the highest demand?” We focus on the product that does the best!
After that, we focus on channel, asking ourselves which type of advertisement strategy is best. Again, we stick to whatever works. Dan said it best: “Go deep. Once you’ve hit gold, you don’t go and dig a new hole.” We keep going until we get diminishing returns. Then we focus on the product of selling and aim to convert at industry norms. Finally, we take a year to focus on the path we’ve started on. We double down on the path that has results.
It’s not easy to stick to a path in times of crisis, but that’s why we need confident leadership. Entrepreneurship works best when experienced people are there to help.

UnShakable Kevin Harrington –

The first entrepreneurial groundbreaker to speak at Unshakeable: Marketing & Sales Strategies for Uncertain Times was none other than Kevin Harrington, inventor of the modern ‘infomercial’ and former host on the hit TV show Shark Tank. Kevin discussed his long history as an entrepreneur and CEO and gave us some guidance on how to run a business during a crisis.

            The idea for the modern ‘infomercial’ came to Kevin when he realized that some channels only broadcast content for 18 hours a day. “How do I fill up that time,” he asked himself, before realizing it was the perfect setting to sell products. His quickness in thinking that night was good, but his follow through is truly admirable.

            Kevin encouraged business owners to double down on customer acquisition. The customer acquisition cost, or CAC, is lower now than it was before the onset of COVID-19, Kevin said. In fact, he had heard of people buying local 30-minute tv advertisement spots for as low as a few hundred dollars! It made me think about how essential communication is to business.

            That’s why collaboration is key. When we have a good idea, we need to have somebody to share it with. “Now is the time to reach out to mentors,” Kevin said. “If you don’t have one, go get one!”


As a business owner and entrepreneur, you have the responsibility to your family, employees, and community to navigate the uncertainty instigated by COVID-19. Of course, in a crisis such as this one, we can’t always know what to do. That is why Entrepreneurs’ Organization hosted Unshakeable: Marketing & Sales Strategies for Uncertain Times, part of the Wednesday webinar series where insightful and connected entrepreneurial experts teach us how to respond to, and come out on top of, crises. Scott Levine of Aegis Law served as the moderator and kept the conversation moving and on time.

Nearly 4000 people from 75 different countries registered for Unshakeable, hosted last Wednesday, April 29th, 2020. Webinar listeners heard from 8 world-renowned speakers, even engaging in a Q & A to discuss the skillset necessary for navigating these trying times. Speakers ranging from former Shark Tank host Kevin Harrington to New York Times best-selling author Suzanne Evans tuned in to help readers like you – the entrepreneur – become the best version of themselves.

Before you sign up for the next webinar, held on May 6th at 3 PM CST, here’s a recap of what you missed last Wednesday.

First, listeners learned how to stay focused. Lisa Sasevich, multiple time Inc. 500 honoree, shared how to make a focused pitch with ‘reverse engineering,’ or selling with the end in mind.

Based on her personal experience, Sasevich explained how the best pitches focus more on the ‘transformation that your ideal candidate’ receives from your offer. Only part of your pitch should be focused on service delivery! Listeners also learned about how a focused mind can better prepare for the future by making a ‘playbook’ of best-selling practices, like a sports team!

Second, listeners learned how to cultivate empathy and care. As speaker Josh Turner said, you can’t just pitch a customer; there must be a relationship present to truly make the sell. No matter the business, customers can sense how invested we are in crafting a relationship with them. The care we put into our ourselves, our businesses, and our communities begets better business.

Third, listeners learned how to use digital media to your advantage. Whether you’re a tech genius or not, you can use digital assets to your advantage. These speakers had us asking all the right questions: Are my websites mobile optimized? Am I using the most up-to-date, tested methods? Is my message tailored for the time? Listening to these webinars is the best way to navigate the tricky terrain of investing in local tv advertisements, online media, and more.

And that’s only the beginning! Keep tuning in to this blog to find out more about these topics, advice from some of the marketing sales greats like Dan Martell, Jack Daly, Todd Herman, Eben Pagan, Suzanne Evans and more!

Finally, remember to hunker down for the time being. Stay safe and healthy. The global, supportive, and historical entrepreneur community is here for you. Show up next Wednesday, May 6, 2020, to learn how you can be a part of it. To see the line-up of speakers and reserve your spot, click here.

Major inspiration and take-away — Don’t back down in tough times: LEAN-IN ! Be creative, advance your business, don’t sit back waiting for all of this to clear. Be the leader and move forward beyond your prior imagination.

MORE on Wayfair

What does South Dakota v. Wayfair Really Mean – Impact For and Beyond Internet Sales


IN a stunning reversal of prior constitutional precedent, the US Supreme Court held in the case of South Dakota v. Wayfair, et al., 585 US ___ (2018), that a state may require online retailers to collect and remit sales taxes.  Under the prior cases of National Bellas Hess, Inc. vs. Department of Revenue of Illinois, 386 US 753 (1967) and Quill Corp. v. North Dakota, 504 US 298 (1992), decided before the onset of massive internet selling, the Supreme Court held that a state cannot impose sales tax collection duties on an out of state retailer doing business via common carrier, absent some physical presence in the state such as property or employees.

The Wayfair decision will have the immediate effect of opening the floodgates for state sales taxation of interstate and international internet sales. This decision impacts sellers in a multitude of online market places such as Amazon, Jet.com, Walmart.com, EBay.com and other web-based selling environments. More ominously, the decision may well lead to other forms of state taxation and regulation.  Accordingly, e-commerce clients should review current sales and other activities in non-resident states, especially where there is more than a modicum of business, and determine if remedial action is required to avoid the imposition of unnecessary taxes, penalties and interest from those states, and perhaps other regulatory penalties.


Under the US Constitution, Congress is given the authority to regulate commerce among the states, Art. I, §8, commonly known as the “Commerce Clause” for short.  The purpose of the Commerce Clause is to avoid disputes in connection with interstate transactions. However, the Supreme Court has never held that Congress has the exclusive authority to regulate interstate commerce. Instead, the Court has held that states have concurrent jurisdiction and may require interstate commerce to pay its fair share of state taxes, so long as the states do not impose an undue burden on interstate commerce and thus interfere with the prerogative of Congress under, and the purpose of, the Commerce Clause.

Hence a given state may impose taxes on interstate commerce, so long as (1) the activity being taxed has a “substantial nexus” to the state, (2) the tax is fairly apportioned, (3) the tax does not discriminate against interstate commerce, and (4) the tax is fairly related to the services which the state provides, Complete Auto Transit v. Brady, 430 US 274 (1977).  If a given state tax fails one of the foregoing prongs of the Complete Auto Transit test, the tax will be held void in violation of Congress’ priority to regulate interstate commerce under the Commerce Clause.  This is called the, “dormant Commerce Clause” doctrine and applies where Congress has failed to enact a statute on a given state level tax or other regulation.

The sole issue before the Supreme Court in the Wayfair case was whether the first prong of the Complete Auto Transit test, i.e. “substantial nexus,” required the retailer to have a physical presence in the state as determined under the National Bellas Hess and Quill decisions.  The Supreme Court held that it did not, and thus from now on, retailers which make sales solely over the internet to customers in other states are now subject to the requirements of collection and remittance of sales taxes in those other states.  Most significantly, there may be other fallout from the decision, as discussed in the analysis section.


There are a couple of immediate concerns for our e-commerce clients:

  1. CLIENTS SHOULD ANTICIPATE THEY WILL BE REQUIRED TO COLLECT AND PAY SALES TAX IN ANY STATE IN WHICH A CUSTOMER RESIDES OR TO WHICH PRODUCT IS SHIPPED. States can be very aggressive in collecting taxes, sometimes even where modest amounts are involved. Even prior to the Wayfair decision, states were very creative in defining physical presence and finding substantial nexus under the Quill rule.  See, e.g., Overstock.com, Inc. v. New York State Department of Taxation and Finance, 987 NE 2d 621 (NY App. 2013) (internet retailer had sufficient physical presence where unrelated in-state vendors, i.e. contractors, assisted retailer with sales).

Indeed, some states went so far as to ignore or limit the Quill physical presence requirement in contexts other than sales taxes. See KFC Corp. v. Iowa Department of Revenue, 792 N.W.2d 308 (IA 2010) (no physical presence required for state income tax where franchisor licensed name and trademarks in state).   In that case, the Iowa Supreme Court took pains to note that the Quill physical presence test applied only to sales taxation, where compliance with numerous taxing jurisdictions and collections from third party customers would be a burden on interstate commerce, whereas state income taxation would not.

Accordingly, as a result of the removal of the physical presence test by the US Supreme Court, clients can expect increased state collection activity not only on sales taxes but on income and other taxes, as well as state regulation, even if business is only done remotely over the internet.

2. COMPLIANCE WILL BE A CHALLENGE AND AN INVESTMENT IN TAX MANAGEMENT SOFTWARE OR A QUALIFIED THIRD-PARTY RESOURCE WILL BE NEEDED. There are over 9,600 state and local taxing jurisdictions in the US, and hence national retailers must now invest in or create software to track sales in each and every one of those jurisdictions where sales take place. Compliance software and services are available, but not inexpensive and often the information needed to comply is hard to obtain from the online market place. While some online marketplaces will collect the tax for a seller, the reporting is usually left to the online seller. And mastering the details of these laws can be daunting. Retail clients can expect immediate increased compliance costs, and other clients will need to determine if their activities fall under state sales and use tax regimes as taxable retail sales for each state.  These will be expensive exercises.

  1. INTERNATIONAL SELLERS MAY FIND LIENS AND OTHER ASSESSMENT OF GOODS STORED IN THE US. It is unclear how this law will impact international sellers. Assuming the international seller has no nexus or contacts in the US but simply sells product through a marketplace such as Amazon.com, it is unclear how those businesses will be pursued. Most today are not collecting sales tax, however, if they enter into transactions to sell their business, they may find liens or other barriers in the transaction. Further, representations and warranties made to buyers in the transaction documents will likely require disclosure regarding compliance with tax laws such as these.

A few potential solutions:

  1. First, the court left open the possibility of challenges under other prongs of the Complete Auto Transit test. Hence a seller might successfully challenge a given tax if the tax is out of proportion to the benefits derived by the seller or otherwise discriminates against interstate commerce.
  2. Second, inasmuch as Wayfair is a Commerce Clause decision, Congress can enact overriding legislation preventing burdensome state taxation, and indeed there are pending bills addressing the matter. We’ll see if there is enough public outcry to force enactment of a statute.  If so, one hopes for the requirements of a uniform state sales (and perhaps income) tax rate enacted by each state, and de minimis sales exemptions, for ease of administration.
  3. Third, the Wayfair decision upheld the South Dakota law in question in part because the law imposes the tax only if a retailer makes more than a minimum level of sales, and because the tax was not retroactive. Hence if a state seeks to impose taxation on a single or a few isolated sales, perhaps an argument can be made that there is no substantial nexus. Any retroactive application might also be deemed unconstitutional.
  4. Fourth, Congress has already limited the ability of states to impose income taxes on certain sellers by federal statute, i.e. the statute commonly known as the “Interstate Income Act of 1959” or “PL 86-272” for sellers of tangible personal property. Clients can and should defend against such taxation as and when the statute is applicable.


 Congress may well enact remedial legislation, but then again, 2018 is an election year.  In the meantime, clients should review outstate sales and activity and take remedial actions, including as applicable, obtaining appropriate sales tax licenses and collecting taxes, and reviewing potential income tax and other regulatory liability.  Clients should also expect more aggressive state collection activities in the ensuing months, even from states where client business activity is small.

AEGIS Law stands ready to help.  We will work with you and your accounting team to develop strategies for minimizing the impact of the Wayfair decision, and, if necessary, defend your business in court or via administrative appeal.

For more information, please contact your AEGIS attorney, Norman S. Newmark, head of the AEGIS Law tax department, at (314) 454-9100 x117 or nnewmark@aegislaw.com, or Rochelle Friedman Walk, the e-commerce practice, at (813) 999-0199 ext. 115 or rwalk@aegislaw.com.

About the authors:

Norman S. Newmark, JD, LLM, has over thirty-one years of experience in tax and tax-related matters, including state Commerce Clause cases, and is currently head of the AEGIS Law tax department.  He is licensed in Missouri and Oklahoma and admitted to practice before the United States Tax Court.

Rochelle Friedman Walk, JD, is AEGIS Law’s expert on e-commerce and an attorney who has a significant practice in representing e-commerce businesses and online sellers.  She is licensed in the states of Florida and Ohio.

©2018 AEGIS Law All Rights Reserved.


The Supreme Court Has Spoken – States Are Permitted to Require Online Sellers to Collect Sales Tax

For many of our international and national Amazon, Ebay, Walmart.com, Jet.com and other marketplace sellers, their world just became more complicated. The US Supreme Court has overturned long-established law in ruling that the State of South Dakota can require Wayfair to collect sales tax even though they have no physical presence in the state.

We anticipate states will establish more specific rules over the next weeks and months.[Click Here for the full decision]

And  contact us if you have questions we can help you answer.

Will the US Supreme Court Require Online Sellers to Collect Sales Tax without Nexus?


Our firm and many of our clients are closely watching the US Supreme Court as it hears oral arguments on tomorrow, April 17, 2018 (the day after tax day) and considers the  South Dakota v. WayfairConsidering it was determined years ago that a business has to be, in layman’s terms, present in a jurisdiction before it was obligated to collect sales tax, it is not surprising that sellers on Amazon.com, Wayfair.com, Ebay.com, Jet.com, Walmart.com and the like have not considered collecting sales tax in those jurisdictions where they had no physical presence. Major retailers have always shipped into states in which they had no stores and charged no sales tax.

The Dilemma: revenue lost by states due to online selling

The states have a problem. About 50% of Holiday sales in 2017 were made online. Sales tax revenue is one of the ways state and local governments survive. States are facing a deficit due to the decline in sales collected as a result of online sales.

The Dilemma: the burden on smaller enterprises

The real dilemma is both one of competition and one of of desperate impact on small online sellers. Today, few international sellers collect sales tax. US-based online sellers are then at a pricing disadvantage if they collect sales tax when their competition does not.

Sellers do not have accurate or complete information from the marketplaces to be able to timely and correctly file in each state and local jurisdiction. Amazon and other marketplaces move inventory as they deem necessary to meet customer needs and sales data and customer names and detail data are not comprehensively and consistently provided to the online sellers. The inventory is sold anywhere that the market place, such as Amazon, chooses to let consumers purchase.  The burden of reporting to all of the states and local jurisdictions is onerous. The cost of compliance and the risk of failure to comply with states and all of the local jurisdictions within those states may cause many online retailers to close their doors.


At the Walk Law Firm, we represent many online e-tailers particularly in buying or selling brands or in funding their companies. Our clients are very entrepreneurial and look at this issue as a way in which governments make it harder for small business to succeed. It adds confusion and complexity to already heavily negotiated disclosure in merger and acquisition transactions.

CNN reported on April 15, 2018, their view of the upcoming oral arguments. I agree with the concerns raised and am hopeful that our Supreme Court does not put the onus on small business and online retailers. If it deems it is necessary or appropriate to permit state and local governments to require online sellers to collect, report and pay sales tax in jurisdictions in which they have nexus only as a result of selling in a market place, then it is our view that the various market places should be responsible for collecting, reporting and paying the tax to the states and local jurisdictions.

Let’s hope our Supreme Court appreciates the need to continue to grow small business in the US.