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Guest on MLMinar:
Lawyer Clay Brewer on legal concerns with MLM

Video Transcript: "Legal Concerns with MLM" with Special Guest Clay Brewer

[00:00:02.260] – Steven Peter Burke (Smiling Steve)

So welcome to the Get an unfair Advantage in Network Marketing podcast (now called the MLMinar Podcast). Here with an absolutely amazing guest this evening, Clay, and it’s Clay Brewer, a young lawyer who’s one of the best writers I’ve ever read about network marketing. Welcome to the show, Clay.

[00:00:30.110] – Clay Brewer

I appreciate. Thanks for having me.

[00:00:31.840] – Steven Peter Burke (Smiling Steve)

It’s a real pleasure for me to have you here because I know that a lot of people will get insights into what makes network marketing tick from a legal standpoint. It’s good to know what we should be concerned about, what we should be looking for, because this can be quite a nice career, even if it’s only a side hustle. I think a lot of people would benefit from knowing whether they’re getting involved with something that’s going to have longevity or unlikely to have longevity. If that makes sense to you, Clay.

[00:01:06.040] – Clay Brewer

It does. Absolutely. I would agree. I like the word side hustle. That’s the most important thing that we should always hammer home because that keeps the income claims at bay and things like that. What may come out of it, it may be astronomical, which is fantastic, great for those individuals, but you don’t want to sell it in a way that that’s going to take you to the moon for lack of a better term, right?

[00:01:28.920] – Steven Peter Burke (Smiling Steve)

Well, how many I’ll tell you, story, Clay. I’ve been doing this a long time. Up here in Canada, where I am, obviously, you’re in the States, and most of people that follow my podcast are, too. But up here in Canada, we had a real estate boom in the early ’90s, and a bust, and interest rates went sky high, and things were tough, especially in the Toronto area where I lived. There was an article in the National Newspaper in Canada called The Globe and Mail in 1992, and it talked about the fact that we had the highest rate of bankruptcies that cost the loss of the personal residence, cost the loss of the home. It said, and it’s something that burned into my brain cells. It said, The 93 3% of the homes that were lost to bankruptcy during this tough time because interest rates went up, could have been saved for the want of an additional $500 a month of income. And that blew my mind.

[00:02:46.970] – Clay Brewer

It adds up.

[00:02:47.830] – Steven Peter Burke (Smiling Steve)

Because to me, $500 worth of side hustle money is easy to make or achievable. Let’s put it that way.

[00:02:56.860] – Clay Brewer

More realistic than millions that you might see on Facebook Twitter or something. I agree.

[00:03:01.270] – Steven Peter Burke (Smiling Steve)

Right. I keep telling that story today, and I say today that number is somewhere between $1,000 and $2,000 a month, and that’s life-changing. If you got that money coming in as a side hustle, you’re no longer struggling to pay the bills, right?

[00:03:19.800] – Clay Brewer

Hopefully not, right? At least you can keep her head above water, hopefully.

[00:03:24.060] – Steven Peter Burke (Smiling Steve)

Yeah. If you lose your job, it’s good to have the side hustle there. But yeah, as long as you don’t lose your job. Your head should be above water. That’s really a great focus. If people really want to plug along in this business and build it up more than that, well, great. That just takes some more time and doing more of what they did to get between a thousand and 2000. Maybe their next goal is, I don’t know, 4,000 or $3,000.

[00:03:52.040] – Clay Brewer

Set those achievable hurdles as opposed to the astronomical things and on day 60, don’t get too demoralized at the outset.

[00:04:02.130] – Steven Peter Burke (Smiling Steve)


[00:04:02.930] – Clay Brewer

I had a really good friend of mine the other day. We were talking about the industry, and I think that the best thing is that you sell hope, not some lofty acquisition of Ferraris or jets or even the high thousands or millions of dollars, of course. You want to really just keep it constrained and sell a realistic outcome. If you have to put a blindfold over someone’s eyes to recruit them into a system or something like that, then you’re already starting off on bad footing. You don’t want to be somewhere where you have to tiptoe around the truth of what you’re actually doing to get someone to join your opportunity or buy your products. You want them to genuinely enjoy it, enjoy the community, and then show what comes of it. Yeah.

[00:04:48.230] – Steven Peter Burke (Smiling Steve)

That would be deceptive, wouldn’t it? Because we both know that the number of people that end up with six figures a month from network marketing are pretty slim.

[00:04:58.120] – Clay Brewer

There existing, but that shouldn’t be the beacon of hope that you’re looking for. You should look for, like you said, the individual that they might be able to pay a car bill that week. Of course, how you phrase it is very particular, especially here in the United States with the Federal Trade Commission and things like that. But again, sign that hope of you might not get what your goals are, but hopefully you can find maybe a purpose in what you’re doing from the day to day. Again, what comes of that purpose, the sky’s the limit, potentially. But you just I don’t want to promise those hard number figures or success because more than likely, unfortunately, you won’t reach those numbers. I mean, human nature, I’m the same way. You never think that you’re the average person. You always think that you’ll achieve above expectations. Unfortunately, the average exists because individuals do fall in those averages.

[00:05:51.960] – Steven Peter Burke (Smiling Steve)

Yeah. One of the things that we teach, which is extremely, I think, important, is that those goals are not achievable unless you learn skills. If you want to get between $1,000 and $2,000 or maybe slightly over $2,000 a month of real money that comes in every a month. Yeah, you got to replace a few people that stop buying, which we call attrition. But if you want to be at that level of income, you better learn how to talk to people.

[00:06:29.950] – Clay Brewer


[00:06:30.820] – Steven Peter Burke (Smiling Steve)

You like me because that’s the way I lead with everything. But I also want to be sure that people understand what the laws and what the ramifications of the laws and how to pick a good this opportunity and how to stay away from the ones that are obviously not doing it right. And that’s why I’m so glad to have a specialist attorney in network marketing like you on the show. I’m going to say one more thing, and I hope your head doesn’t explode. But I see you as the future of one of the leaders of this industry in the future from a legal standpoint.

[00:07:13.910] – Clay Brewer

I appreciate that because I think it’s very important because before I start working at Thompson Burton alongside Kevin Thompson, who’s well known in the industry as well, you have those negative connotations of the industry. But then you meet the entrepreneurs, you meet the people that want to do it right. There There is an avenue, but unfortunately, you have one bad article, one bad documentary or something, and that gets the headlines. Then you take network marketing and MLM, which are viable, legitimate businesses, and you pair them with pyramids and Ponzi and things like that. And unfortunately, they become synonymous even though they’re not. And so it’s my goal to teach individuals that, one, they’re not one and the same, and then two, there’s a way to do it right. You just have to want to and maybe not look at your neighbor who might not be doing it correctly because- Sure. Eventually, they’re going to find you. Yeah, they are eventually. But eventually, it’s going to come back to haunt you. And those are the ones we want to stop because it causes bigger issues for those who want to do it right, like I’ve said.

[00:08:18.510] – Steven Peter Burke (Smiling Steve)

Right. A lot of people end up getting involved in something like that. Then when it’s taken apart, what happens is that they don’t come back to the industry. It was all smoking mirrors or deceptive marketing or whatever we want to call it, bad actors, and they leave. It causes what I like to call, we leave dead bodies behind us, not literally.

[00:08:42.380] – Clay Brewer

Good news does not sell as well as bad news. As much as we want it to, it just won’t. We have to navigate those muddy waters as well.

[00:08:50.340] – Steven Peter Burke (Smiling Steve)

I want to hit on some actual cases with your permission, going all the way back to Glenn Turner and Coscot International. Of course, he was before that, where he was involved in holiday magic. He was quite the character. And bring it all the way back to the recent FTC versus Nolan and SBH or Success by Health, and get you to tell everybody, because I’m not an attorney, even though I’ve been following this stuff for a long time and wrote about it excessively in NetworkMarketingNews, networkmarketingnews. Com, which I read for nine years and before that, and since then have kept up with it, you’re the expert, not myself. If we can, I’d like to get right into those cases.

[00:09:42.140] – Clay Brewer

Yeah, absolutely. I’m happy to answer any questions you might have. But to I’ll start. I think apprentice behind all these cases would be that regulators, the goalposts keep moving. And so, yes, we have case law, we have settlements. I’m not going to go into further detail about the distinction between that if you’d like. But You can even, like you said, be an expert in the industry or know all these cases and the facts, front and back of everything. But the operational realities and how the FTC, for example, views a company can change from case to case, from company to company, and just how they feel on that day, unfortunately. It’s important to have these key aspects in mind. But as I always tell clients, it’s impossible in this Ministry to give a stamp of approval. Even if we want to, it’s just you can look great on paper, but then have horrible record keeping or just poor execution, and that’ll go a long way as well.

[00:10:43.030] – Steven Peter Burke (Smiling Steve)

Yeah, you could have a big heart, meanwhile, and still be in trouble with the FTC. So you’re listening to that, people. If anybody ever tells you that some law firm has said that they’re legal and they’re ethical, you pretty much stop right there. That’s not going to happen.

[00:11:00.060] – Clay Brewer

I can’t speak for other firms, but I know that me personally and also Kevin, we do not say you can operate. We say as far as I’ll go is you have the potential based on what you’ve provided us or how we view your model and things. But until you have sufficient customer data and how you execute the model is a big thing. Then secondly, it even goes deeper that even if you have a great model and you have numerous customers, one, if you can’t prove that fact, then it’s pretty much as if you’re not doing it anyway. It’s extremely important to be able to prove and contrary the nefarious meanings that regulators might try to portray in your company.

[00:11:42.530] – Steven Peter Burke (Smiling Steve)

As we used to see, if it isn’t written down, it didn’t happen.

[00:11:45.660] – Clay Brewer

Sometimes when it’s written down, it still didn’t happen. But it’s a different world of law, right?

[00:11:49.530] – Steven Peter Burke (Smiling Steve)

No, we don’t want to scare people. It’s great that Clay came out here and told the truth. The goalposts move a little bit. The same person has been running the FTC since it started. The people change, the head of the FTC is going to change. The perception of network marketing by the current head of the FTC and the people that are doing investigations is going to be different. The goalposts are going to move a little bit, but we believe there’s a lot of hope to talk about it in this industry, don’t we, Clay?

[00:12:23.250] – Clay Brewer

I agree. I think it all goes back to, again, the administration has changed, the priorities have changed. Right now, the FTC is more focused on antitrust and big tech and things like that. That might put things to the wayside for network marketing and everything. But it all goes back to, like you said, the Koscot Case, where it’s a payment of money and you earn rewards unrelated to product sales. That’s pretty much really boiling it down to the complexity.

[00:12:51.190] – Steven Peter Burke (Smiling Steve)

It’s two parts, right?

[00:12:53.190] – Clay Brewer

Correct. Two elements.

[00:12:54.180] – Steven Peter Burke (Smiling Steve)

You pay for the right to be able to represent the company and you get paid when somebody else pays for the right to represent the company. Is that close enough?

[00:13:03.200] – Clay Brewer

Yeah. Coscat in 1975 said that a pyramid scheme breaks down to those two elements. So you pay… Most companies have some enrollment fee, and so everyone’s going to satisfy that first element. Because you want to have that customer-distributeur distinction. I even advise clients to, although it might be tough to satisfy a part of a test, you want to make sure that you have that distinction between customers and distributors. That takes it to the second element for pretty much every company, and that’s rewards unrelated to product sales. Obviously, if I recruit you, Steve, and you pay a $99 enrollment fee, and then I get $40 of that enrollment fee, no products exchanged hands. That’s just me recruiting you who then might recruit someone else, correct?

[00:13:50.900] – Steven Peter Burke (Smiling Steve)

Yeah. So, Clay, let’s say for sake of argument, there’s an alternate reality that you and I are involved in, and I run into I do at a party. I start talking and you say you’re a lawyer. I said, What law do you practice? And it comes out that you’re in the direct selling industry and you’re an expert in network marketing. I get all excited. Wow, Clay, no way. I’m starting a network marketing coming. I got this great idea, Clay. Here’s what I’m going to do. I’m going to charge everybody 50 bucks, administrative fee to sign up in the company. And then I’m going to pay $25 to every person who they sign up Pay them $25 to every person they sign up out of the administrative fee because then I’ll be able to keep my price of my products low and, Oh, it’s going to be great, man. Then you’d have to tell me.

[00:14:40.470] – Clay Brewer

Unfortunately, that’s illegal. That’s textbook pyramiding. You want to find where your product is. You have to have a bona fide, genuine product that has retail value.

[00:14:51.530] – Steven Peter Burke (Smiling Steve)

That’s going on in a huge way right now in one particular company. We don’t mention company names, only about past cases because they’re already public. Bingo. Per the cost cut. Per the cost cut test, that would fail, right?

[00:15:08.520] – Clay Brewer

Correct. If you’re paying by administrative fees, now there can be nuances of the digital age, social media. There are different products that might not be considered. The textbook like lotions, potions, pills that the old-school marketing companies have of garage full of products. But there has to be a bona fide product, whether digital or physical. The key test to that is, do individuals that are not enrolled within your opportunity find it valuable? If the answer is no, then you need to do some soul searching because you really don’t have bona fide non-distributor customers.

[00:15:46.750] – Steven Peter Burke (Smiling Steve)

You’re not going to end up with at least 50% of the revenue coming from people that are not participants in the plan. We know that that’s been laid out in a number of legal cases. In fact, asked Herbalife for 66%, didn’t they? Right.

[00:16:01.980] – Clay Brewer

They’re under a settlement from 2016, I believe the year is. They are required to, I believe, don’t quote me on this, but they have a set percentage. I think 80% has to be from customers that are not Distributors in the company, and they’re still excelling, which is great. Whenever an executive or a company says that, Oh, we have to force our distributors to purchase a certain amount of product to survive, I would push back on that a bit further. Maybe there’s a deeper issue that you’re just not wanting to bring to the open at this time.

[00:16:36.560] – Steven Peter Burke (Smiling Steve)

I actually heard Kevin Thompson, who you work with on a show. When Herbalife came up, he said, Yeah, and they met the conditions of the $200 million settlement. He said that proved that they weren’t an illegal bearman.

[00:16:56.080] – Clay Brewer

Yeah, and they’re still operating. People might have different interpretations, but under the rules of that settlement, they’re still a successful public company. They have even more stringent conditions than an ordinary private company may have.

[00:17:11.450] – Steven Peter Burke (Smiling Steve)

Back in the day, I’m sorry, some pie got delivered. Back in the day when products and services really had to be sold to a direct distributor who then sold it to another distributor who then sold it to customer because the company had no low-cost way of shipping goods direct. This is before FedEx and UPS. Back in the day, Amway did the industry a huge favor and stood up to the FTC in the 1979, proved that network marketing was legal. But we do know nowadays that that precedent doesn’t really apply, does it, Clay?

[00:17:56.810] – Clay Brewer

That’s correct. These are known as the Amway Safeguards, as we discussed in the past, I’m sure most of our audience has heard to some degree. If you haven’t, you’re probably a distributor who has read the policies and procedures of your company and may see a provision that references the 70% rule. That’s where the original term distributor comes from, because like you said, the product from a company would be shipped to an individual who then distributed it to individuals in their network. With the age of direct fulfillment, you don’t really have that middleman anymore. The term distributor has been maintained in certain companies. You also have associates, ambassadors, brand partners, and the like. But sometimes, or a lot of the time, individuals like brand partners or whatever, never have to actually touch product in order to earn commissions on those sales because it’ll be through an affiliate link, direct fulfillment from a warehouse of the company, straight to the customer or whatever. The only time it would come would be maybe an internal consumption, which is personal purchasing, and then you can then sell to individuals if you so choose as well. But the 70% rule does not really apply anymore, even though a lot of policy procedures still maintain it because it just became a safeguard that more like boilerplate language in today’s an age.

[00:19:18.000] – Steven Peter Burke (Smiling Steve)

Yeah, we really do owe Amway a gratitude for proving the network marketing is legal. But I think that brings us all the way up to Burn Lounge, doesn’t it? I mean, that was when the new model was applied where people didn’t have to hand off product to people and the FTC proved that Burn Lounge was an illegal pyramid. Please talk about that.

[00:19:42.110] – Clay Brewer

Burn Lounge was a case in 2015, and so we’re now in the internet age. A lot of things have changed. It applied to music, but not to get into the nuances in the weeds of the individual case. The biggest thing focused on the value of the product. As we discussed previously, if an If the individual outside of the opportunity does not find value in that product, then that raises immediate concerns. The individuals are just purchasing to then recruit others who purchase, to then recruit others who purchase. That gives a bad taste in a regulator’s mouth, of course, because if you don’t have genuine customers, then if the commission structure were to go away, then more than likely your business would collapse because revenue would be pretty much zero.

[00:20:28.040] – Steven Peter Burke (Smiling Steve)

We call those internally Within the industry, people call that the money game. It’s an excuse to make money. The product is the excuse to make money.

[00:20:37.100] – Clay Brewer

Exactly. People were buying and not particularly to use this access to music and things like that, but more so to have the right to recruit others who then did the same, regardless of whether they used the actual product or not for whatever it was being used for. The Burn Lounge Court actually raised a really interesting thing that then was brought up recently in the FTC versus Nolan and Success by health case is I’ll say this very slowly because I sometimes get confused trying to say it, but just because a product has a value does not mean that a pyramid does not exist. A pyramid does exist. On the flip side, just because a product is valueless does not mean that a pyramid does exist. Does that make sense?

[00:21:25.310] – Steven Peter Burke (Smiling Steve)

It does.

[00:21:26.460] – Clay Brewer

It’s how the payment structure, everything works and why the people are buying the products because customers will define the value of the product. As lawyers, I rarely comment on a company’s product value. There’s going to be a market for something somewhere, probably. But you want to know the biggest distinction is individuals that are enrolled in the opportunity. Are they the only ones purchasing it? That’s an issue. If 50%, there’s no real fine line, but if 50% in a feather or more purchase it outside of the opportunity, then that’s a good argument that there is value. Now you can get into the weeds and that can be more of a factual dispute going beyond that. But I think that’s a good initial start of what that case established.

[00:22:14.650] – Steven Peter Burke (Smiling Steve)

Yeah, the majority of the income cannot be from internal consumption. I hate that term, but- It’s tough. The participants are the only ones that are consuming or the majority of the ones consuming the product. That brings me to something else that’s been bugging me a lot, and I know you and I touched on it briefly when we were talking the other day, and that is things like memberships. Obviously, a membership can be a legal and ethical product.

[00:22:46.420] – Clay Brewer

No question about it.

[00:22:48.360] – Steven Peter Burke (Smiling Steve)

No question there at all. But if we create a membership and we tell people, Hey, the membership is the product, and the Participants, it’s mostly participants, which would offend the pyramid rule. But if they’re not using that membership to actually make purchases, and you came back with an example, and I think it was ZeekRewards or something. I’ll put this another way. If we’re saying that the membership is the product and that product is to buy, it’s a fee you pay to buy products at a discounted rate, which is Costco, basically. That’s Costco’s model, but nobody’s buying product.

[00:23:44.770] – Clay Brewer

That can be the issue.

[00:23:46.170] – Steven Peter Burke (Smiling Steve)

That can be an issue. That can be an interceptive thing to me.

[00:23:47.940] – Clay Brewer

Yeah. Without knowing further in the specifics of the hypothetical and things like that, that does mirror the Zika rewards case. And so a membership to Premis can be a product, undoubtedly. It’s not an enrollment fee, it’s not to join the opportunity, it’s just a membership to enjoy certain discounts with companies, individuals, et cetera, who may be a part of this network that I’m joining. No problem there. The biggest issue that Zeke rewards fell into, and I’ll just use an example that we’ve come across has been to the Ringer of the FTC and things like that, is it was a penny auction. Individuals were buying bids But never using those bids to buy products. It was just more bids. I would buy bids, and then I would recruit you, Steve, who bought more bids, and I would get a percentage of my commissions are derived from the bids that you purchased, regardless of the auction actually being utilized. That’s where the nuance and the stickiness of that example would come into play. I’m going to give you your favorite lawyer answer. It depends on the particular facts at hand. But if no one’s I think the membership or digital offering or whatever is being offered to actually then use that for something else, then it might be an issue to dive deeper in.

[00:25:09.800] – Steven Peter Burke (Smiling Steve)

Yeah, it smells bad, right?

[00:25:12.660] – Clay Brewer

It might just be an excuse to make money, right?

[00:25:16.780] – Steven Peter Burke (Smiling Steve)

That’s all.

[00:25:17.700] – Clay Brewer

It really depends. That’s very fact-specific. As I said, it can be very nice on its face. But then when you dive into the operational realities of an individual company or individual a direct pattern, many assumptions that you have can go right quite quickly, as you can imagine.

[00:25:36.420] – Steven Peter Burke (Smiling Steve)

Yeah. That’s why I wanted to bring it up because I knew that, but you’re the attorney in it.

[00:25:42.410] – Clay Brewer

That’s why record keeping and Very stringent compliance is a must in this industry. I launched yesterday, so now I’m good to go going forward. Being a CEO or executive, any company, especially in this industry, as highly regulated as it is, it’s unfortunately not a science, it’s more of an art in how you practice it.

[00:26:04.910] – Steven Peter Burke (Smiling Steve)

Yeah, I concur with that. That brings me right, it segues perfectly into my next question. On July 19th, you wrote three quick, boil it down, all that legalese, down to three quick points. Number two was you have to promote customer acquisition.

[00:26:29.900] – Clay Brewer

I should probably make that number one because the more you talk to people, the more that really is what matters. And unfortunately, even internal consumption isn’t considered a classification of a customer. I personally disagree with it, but I don’t write the laws, I don’t enforce the laws, and so I only help individuals navigate these waters.

[00:26:51.530] – Steven Peter Burke (Smiling Steve)

This is your sandbox, people. You don’t have to play outside of it to make money.

[00:26:56.720] – Clay Brewer

Right, exactly. I agree with that because that’s when it gets very tough.

[00:27:02.440] – Steven Peter Burke (Smiling Steve)


[00:27:03.300] – Clay Brewer

Again, when it says customer acquisition, it means non-distributor customers. So even if a distributor is purchasing it, unfortunately, regulators are moving in a direction where they do not interpret those as being customers.

[00:27:16.300] – Steven Peter Burke (Smiling Steve)

And Louis Cash actually asked that question. Thank you, Louis. Re internal consumption? And when we’re saying internal consumption, we’re talking about the independent representatives of the company and the product they buy for themselves.

[00:27:30.690] – Clay Brewer


[00:27:31.350] – Steven Peter Burke (Smiling Steve)

And a very good rule of thumb is 50% has got to be outside of that. But here’s how you can pick a company out and what they’re doing makes sense. Are they setting some requirement for you to rank advance. You got to have this many customers before you can rank advance or this many customers before you can earn that bonus. If they’re not doing that, well, we can’t say for sure it’s an illegal pyramid.

[00:28:04.610] – Clay Brewer

I wouldn’t even make that jump. It’s not the next logical leap of any monthly volume requirements or anything to consider you to be a pyramid or for it to even be illegal or anything to that effect. But you want to dive deeper into why that may be the case. I’ve heard through the Ether, a lot of companies will say, Well, if we got rid of that factor, then maybe our sales would drop. Well, That’s an issue because that means you might be lacking customers. It’s not saying you’re not operating illegally. It’s not saying there’s an issue there at all. But as a company executive, if you have that concern, it warrants diving deeper into who’s actually purchasing it and why. For example, if you have $100 that has to be spent every month, are all of your distributors buying it on the 30th and 31st of the month and only at 100, 105? Or is it varying based upon actual need and personal use?

[00:29:05.810] – Steven Peter Burke (Smiling Steve)

It’s really fascinating stuff. I think all the time about this stuff and I think, Well, maybe the price of your product is too high, and that’s the reason why you can’t keep customers, right? Why you have customer, sorry, acquisition, the opposite of acquisition.

[00:29:24.850] – Clay Brewer

Attrition. I’m sorry.

[00:29:25.390] – Steven Peter Burke (Smiling Steve)

Detrition. Sorry, my brain went… That’s why you got such high attrition rates with your non-internal consumption, right? Right.

[00:29:34.260] – Clay Brewer

That’s a nice way of phrase it. Yeah.

[00:29:36.870] – Steven Peter Burke (Smiling Steve)

Yeah. Maybe that’s what’s at fault. When you say you got to dive deeper, those are the things you’re looking at, right? Like Why aren’t you keeping customers? There’s got to be, is it quality of the product? Is it the cost of the product? It’s non-competitive. What’s the issue? Is it something that’s too expensive for the average person to purchase? I look at them all the time. They take off these deals, business opportunities. Sorry, I call them deals sometimes.

[00:30:06.900] – Clay Brewer

No worries.

[00:30:09.400] – Steven Peter Burke (Smiling Steve)

I’m looking at it going, That doesn’t make sense at all. I mean, $140 a month per person for a product that nobody bought before that company came along. What?

[00:30:23.210] – Clay Brewer

Again, it could be an issue, but just like I said, it warrants diving deeper. What I mean by that is if you’re a distributor, talk to your upline, ask how they’re doing things, reach out to the company. I mean, there might be a bit of a barrier between the executives and the company, but be a part of the solution to grow the industry in the right direction because it can start with you. I think that’s very important to have that two-way street to see what might be going on. Because I think sometimes a lot of company executives get disconnected from their Salesforce. Then on the flip side, I think a lot of the Salesforce get disconnected from the company, break away, and then turn into the anti-MLM crowd. I think that’s maybe from a bad experience and maybe from a disconnect in conversation. When I say dive deeper, it’s just ask questions and just know how you want to succeed and how individuals succeed. Then you can maybe shed light on that with your own interpretation.

[00:31:22.310] – Steven Peter Burke (Smiling Steve)

Yeah. I mean, Louis just wrote a note here in the chat. He said, so customer acquisition would be most important focus to stay above bar, more training on how to grow customer base would be very key. I concur with that. I did want to say, as you were talking that Mark Hughes used to travel with Jim Rohn, and they used to go city to city and do a show, and they were very in touch with their distributors. I think after Mark passed away, unfortunately, at a very young age, it was ’44. After that, after he was gone, I felt like the company got a little disconnected from the field. Again, I’ve never been in Herbalife, but of course, I knew quite a few people who were. In writing Network Marketing News for years and years and years, I talk to everybody, and I really agree with that, Clay. I also agree with your statement that the distributors can be a part of the solution. Independent reps, the small guy can be a part of the solution. If the company is not focused focused on customer acquisition, there are other companies out there that are focused on customer acquisition.

[00:32:36.650] – Steven Peter Burke (Smiling Steve)

The ultimate bottom line is if you can’t get the right answers from your upline in your company, you’re not a tree.

[00:32:47.440] – Clay Brewer


[00:32:47.900] – Steven Peter Burke (Smiling Steve)

The wind blows, you can move.

[00:32:51.020] – Clay Brewer

Right. Like you said, establish that personal connection with individuals. Don’t just think that sales will come to you. I always believe that if something’s too good to be true, it probably is. That’s why I always give advice to companies to sell hope and sell the mission and the promise that you have. I like to always say, Promises made, promises kept. Because what good does it make making all these promises and then no one that joins your company ever reaches any of these even minor or lofty goals that you set for them, that’s where the disconnect, like I’ve said, and the malcontent into play.

[00:33:30.930] – Steven Peter Burke (Smiling Steve)

Right. 100%, yeah.

[00:33:32.960] – Clay Brewer

Again, if you have to sugarcoat something, then there might be something you need to dive deeper on as a company and look internally, because if you have to lie to get people in, then there might be deeper issues.

[00:33:45.420] – Steven Peter Burke (Smiling Steve)

Yeah. I put close to a thousand people in this industry, personally. Now, I’ve been around a long time, so that sounds like a lot. Please understand when you’re listening, I don’t work that hard, and I don’t have to anymore. But I would say that if you ask people when you’re talking to what additional income would change their lives, most of them are not going to say $100,000 a month.

[00:34:20.920] – Clay Brewer

It’d be nice, but that’s not the average guy. I agree.

[00:34:25.750] – Steven Peter Burke (Smiling Steve)

Why don’t we sell them what they can believe? By the way, there’s a huge issue with selling what people can’t believe. And when you’re dealing with somebody with mad skills who’s been around a long time, really is good at talking, they can appear to be… Actually, it’s harder for someone like that to be successful than it is for somebody who doesn’t bring that to the table.

[00:34:57.060] – Clay Brewer

I agree.

[00:34:58.600] – Steven Peter Burke (Smiling Steve)

So if you’re making a $100,000 a month, guys, it’s tougher to go out in the field and say, Hey, I want to help you pay some bills.

[00:35:07.860] – Clay Brewer

It’s hard to connect to that individual, yeah.

[00:35:10.680] – Steven Peter Burke (Smiling Steve)

They’re looking at you going, Oh, my gosh. But I would say this to the field, if you are one of those people who wants to earn mid five figures thing, you’re going to have a lot of people you need to talk to who need $2,000. You really need to present what they are looking for and allow them to change their perception of themselves through experience, not go at them like they should be looking to make $50,000 a month or $25,000 or whatever.

[00:35:44.720] – Clay Brewer

I would agree with that. Yeah, absolutely. Start with realistic goals. Like I said, if something comes out of it, fantastic. If not, then you didn’t oversell. Again, going back to promises made, promises kept. It’s very important to understand, are these individuals selling a product and teaching you how to sell this product, or are you, for the lack of their term, becoming the product? It’s because they’re recruiting you. It’s very disheartening to see some individuals out there who teach certain things, and then they make the money off of teaching you, not actually doing what they’re teaching you. That’s something that drives me a bit crazy.

[00:36:20.170] – Steven Peter Burke (Smiling Steve)

There’s course sellers out there that are doing that right now. I mean, they’ll build up a following, dump their course on them. Most of the people that buy the course can’t do what they did, which is in the course. As a result, those people stop following the individual. Their followers disappear, which we don’t do on this podcast ever or on smilingsteep. Com. We’re never going to do that.

[00:36:45.250] – Clay Brewer

Which is funny. There’s a lot of legitimate things out there, but it only takes, again, like I said, the outside of the conversation. It only takes one, and then the entire industry can collapse because of- It’s going on all the time.

[00:36:57.240] – Steven Peter Burke (Smiling Steve)

There’s people out there. I saw an advertisement on Facebook today. She has a thousand customers, and she’s enrolled 246 distributors, and this new advertising concept. Well, I know what the advertising concept is. I wrote a book about it. It’s called The Free Cheese Secret. By the way, don’t buy their course because you can have my book for free. But here’s the reality. How much was the spend? What was the ad spend to create? I saw another group, sorry, another person from the same group, and they’re going, In my first 30 days, blah, blah, this happened, this happened. No, it’s all down to the advertising. Wow, you got to try this out. Okay, so you enrolled 61 distributors in a month. How do you train all of those people? And what was the ad spend? Because if you blew $10,000 to get 61 distributors in, it ain’t looking so good, right? But now you can sell a course. This is what? What do you call that? Deceptive marketing? What do you call it?

[00:38:01.490] – Clay Brewer

Yeah, miscellaneous. There’s a variety of rules, but that’s more of the legal parlance of it, correct?

[00:38:08.080] – Steven Peter Burke (Smiling Steve)


[00:38:09.080] – Clay Brewer

Again, if it’s too good to be true, I’m going to keep harping on this. Dive deeper into it. Don’t think you’re going to make X amount of money overnight because there are no overnight successes no matter how a prominent social media and stuff might make it. If you take control of what Which companies you join and how you go about it, then I think you’ll be much better off, succeed or fail.

[00:38:36.070] – Steven Peter Burke (Smiling Steve)

Yeah, 100%.

[00:38:36.970] – Clay Brewer

You’ve done the research. You weren’t trying to look for that quick buck because I see a lot of people that try to jump ship all the time for that next big thing, that next big buck.

[00:38:47.510] – Steven Peter Burke (Smiling Steve)

Timing is a myth, isn’t it? It really is. I mean, you still don’t know how to recruit a lot of people. So what difference does it make if you jumped into a brand new business opportunity? It’s like the definition of insanity. You keep on doing the same thing and you expect different results.

[00:39:08.880] – Clay Brewer

There’s a lot of factors that goes into it, whereas it might just appear as if it’s one or two. It’s a variety of different things that lead up to success.

[00:39:17.100] – Steven Peter Burke (Smiling Steve)

Yeah. Skills being very important. Also understanding whether you’re in a good business. That’s why I wanted to have Clay here. We’re so fortunate to have Clay as a guest. I can’t tell you because I’ve never talked to anybody with more experience. Sorry, not experience. A better ability of conveying the legal concerns, Clay. I really respect you on it. I tell you, I knew Jerry Neerert really well, and Babner passed away, Jeffie Badner, who I’ve known for years from the MLMIA, Multi-Level Marketing International Association, used to go to their conventions. I met Rod Cooke here, who was the MLM watchdog. I met him there, and he just passed away a year and a half ago. But I think your firm might be the top network marketing firm in the United States? There’s a couple of them there. I don’t know. You guys think you’re the best or what?

[00:40:22.780] – Clay Brewer

I enjoy what I do, and I think that if an individual loves the work that they do, and I love working with Kevin Thompson, he’s one of the best, in my I think that our work shows that we enjoy what we do. It sure does. That’s a big thing because we really believe in the industry. It’s at a crossroads right now, I think. I think there’s a lot of opportunity for individuals, but I think a lot of the negative connotations have to be dispersed from. That’s why I’m so passionate about trying to bring more content, educate individuals, distributors, and companies alike. Hopefully, individuals learn just a little bit of knowledge each time I write or each time I speak, and they can take it to their teams or to their companies. If they have any questions, feel free to reach out because I think the passion definitely shows at our firm.

[00:41:10.840] – Steven Peter Burke (Smiling Steve)

Yeah, 100% Clay. We’ll promote your writing because I think it’s top drawer. I got one more question for you, and you might want to add some stuff that I haven’t brought up. You’ve covered a few of my questions before I even had a chance to ask them, which is great. Refunds. Why are they important?

[00:41:31.520] – Clay Brewer

It really comes two-folds. You have the customers, then you have the distributors that are in the opportunity. Customers is really left to the individual business based on the product, based upon spoliation, can it go bad and things like that. We like to see 30 days just because that gives the individuals enough time to test the products. It’s up to the company, really, when it comes to customers in short. The biggest factor, and a lot of states have rules when it comes to distributors, so when it comes to the enrollment fees, for example, or when it comes to internal consumption, a lot of the states want you to refund those enrollment fees depending on what state you’re in based on X amount of days if an individual decides to cancel, decides it’s not for them, give them $100. Right.

[00:42:18.500] – Steven Peter Burke (Smiling Steve)

Right of recission or whatever.

[00:42:20.100] – Clay Brewer

Correct. Yeah. Don’t fight on $100. Just don’t be that company. It doesn’t promote success, really, or positive business keeping, The most important thing is when you have internal consumption, let’s say that an individual… Again, this has changed a bit from direct fulfillment and everything. But if you buy a thousand or $2,000 with a product and you have it in your garage, and then you quit your company, it’s a good business practice to purchase back resealable products that you can then reseal to others because you don’t want individuals to be stuck with a product. Because the number one issue of why regulators, state and federal-like, come to the attention of your business is based on consumer complaints. That’s whether through tina. Org, which is truth in advertising, they’ll bring it to their attention in a variety of different avenues like the Triple B, the Better Business Bureau. They’re not just perusing the web. I mean, they do some, I suppose, but they’re not just googling MLM companies and looking to attack. It derives from consumer harm because that is what regulators such as the Securities and Exchange Commission and the Federal Trade Commission really base their mission upon is alleviating consumer harm.

[00:43:33.100] – Clay Brewer

You should always have that in mind when denying or promoting a refund and return policy. Yeah.

[00:43:40.770] – Steven Peter Burke (Smiling Steve)

So the refund is really important 100%. There’s a thousand around it, guys, and also complaints cause the company to be inspected. Really, we don’t want that.

[00:43:52.750] – Clay Brewer

Compliance is the biggest thing. By nature of being a business in America or any location, really, Canada as well, you’re going to get complaints. But how you handle those complaints and what’s causing those complaints is really the biggest factor to keep in mind.

[00:44:10.750] – Steven Peter Burke (Smiling Steve)

Just putting a note out to the few people that are on the call as your insiders that work with me just to see if they have any more questions. Clay, what didn’t I touch based on? I think the most important thing right now is to focus on income claims.

[00:44:26.230] – Clay Brewer

We touched on it tangentially, such as I always use, and Kevin uses as well, the promise is made, promise is kept. Just don’t lie about how much money you can make. I’ve seen companies where they have a very robust compensation plan, but no one’s hit the top 50% of it. And so if no one’s ever earned those monies, then don’t put it in any of your statements or any of your documents because it’s not a realistic outcome. So the biggest thing Everything is to provide the typical results of the ordinary individual in your company, where they are they expected to make? If I were to join your company today, what can I, through reasonable efforts, of course, luck, timing and everything come into play, but what can I expect to make? It’s not going to be driving a Ferrari in a year. That’s the most important thing. 200, 500, a side hustle is the terminology that I love to use. Yeah, me too. They went from financial freedoms. They were from quitting your day job, quitting your 9:00 to 5:00. If it happens, fantastic. But don’t make that a selling point to get a single mother of four to enroll in your company, for example.

[00:45:44.530] – Clay Brewer

There’s a very fine line and distinction there. Just be open about your business, open about what individuals can earn. It’s great to see success, but do not promise success just by nature of joining your company.

[00:45:57.670] – Steven Peter Burke (Smiling Steve)

I’m always concerned when I look a company that does not publish average income earnings.

[00:46:03.640] – Clay Brewer

Correct. The income disclosure statement is an absolute necessity. If a company does not have that, I would strongly recommend executives listening to create one and distributors to reach out to your company management or compliance team and ask for it.

[00:46:22.000] – Steven Peter Burke (Smiling Steve)

Hey, where is it? We need it.

[00:46:23.880] – Clay Brewer

It is a requirement because we’ve seen income claims are an the origination of these complaints that the regulators and stuff tackle. We’ve also seen income claims be in complaints when they sue companies. To then get under the hood, and that’s where the pyramid will be a back door to get to those arguments. These are very low-hanging fruit for regulators to then get under the hood of your company and really find maybe some deeper issues. Again, there might not be, but- If I’m not mistaken, that was part of the business opportunity rule that went into effect in 2013, too, a requirement to have it. It is, yes, but MLMs, it’s a fine line between business opportunities and network marketing. They’re not an exception or an exemption, really. It’s understood not falling under that rule right now. There are some heated regulatory talks of them trying to get multi-level marketing and network marketers back under that rule. But yes, the business opportunity rule in itself does require extensive disclosure documents prior to someone enrolling.

[00:47:31.460] – Steven Peter Burke (Smiling Steve)

I think it’s good practice.

[00:47:34.800] – Clay Brewer

It’s just good practice to be open and honest about what your business is doing. If you have to mislead people to get them into your business- There’s something wrong. In a business you want to be a part of. Right.

[00:47:43.600] – Steven Peter Burke (Smiling Steve)

100%. Thank you very much for stating that. I don’t want to be a part of that.

[00:47:50.230] – Clay Brewer

This is someone who is passionate and pro-industry saying this. Right. I’m not trying to scare anyone away, but it’s a very a full task, and it’s very easy to do. We help clients every day do this. We know what it takes to be successful and what’s needed to make it work. But you have to be willing to play that game and put in the hard work.

[00:48:15.320] – Steven Peter Burke (Smiling Steve)

I’ve got a story for everybody. When I came back to Network Marketing, I had a very unfortunate experience. In the early ’80s, the company I represented in the United States was defrauding the Canadian government when they sending goods to Canada, and that’s well documented on the Internet. I’m not going to mention the company name because they’re still operating, and I don’t want to be a part of hurting anybody. But I left the industry. I was really upset. I’ve got a great ability to talk to people, so I was going to make good money in traditional sales anyway. So I left. And then I bumped into somebody I knew from the copier industry, photocopier industry in the late ’80s, and he had a brand new check in his hand for $44,000. He had to come in that morning. And later on, I joined. I got excited and joined. Later on, I found out that that check included what we call open downline, closed downline. It included the commissions due to people who had not yet reached the direct level and the compensation plan.

[00:49:35.360] – Clay Brewer


[00:49:36.680] – Steven Peter Burke (Smiling Steve)

So it wasn’t his income. And later on, I was able to piece together who was involved with him by meeting everybody in rough investment of what he actually earned, which was significantly less than 42 or 44,000 or whatever. That guy left the industry, so I’m not hurting him in any way. If this story should get out, he went into sales training and never came back to the direct selling industry and he continued to be a good sales trainer. But that was complete, I don’t know, totally misleading, I guess.

[00:50:11.130] – Clay Brewer

Yeah, to an extent. Misleading and deceptive is the terms we use in our industry. I agree with a lot of the things that individuals have said in the comments as well that I’ve seen. Focus on where people are. It’s like what you’ve kept saying throughout our conversation tonight is the $200 might be great. Fifty bucks is great for people. I mean, that’s a lot of money for a lot of people. It’s great to see the lofty jets and the cars and the vacations and the things you can earn to go to Cabo or Cancun or Paris or whatever. But don’t start there. It can be maybe a hopeful goal that’s a possibility, perhaps. But start with someone today. How can you help them today? How would joining your business help today? How can they take control of their lives today? I think that’s the is an important thing to focus in on. Sell a story, but don’t sell a false or false expectation of a fantasy story, right?

[00:51:09.900] – Steven Peter Burke (Smiling Steve)

100%, Clay. I’d rather be the expert at helping people make $1,000 a month than I would be considered the expert of helping people make $50,000 a month. Because I know that for most people, that’s never going to happen.

[00:51:27.340] – Clay Brewer

For the average American, I’m sure it’s the same for the average I mean, 200 bucks a month extra, that’s monumental. That’s a lot of hours of hard work. That’s a lot of money.

[00:51:38.100] – Steven Peter Burke (Smiling Steve)

200, 500, whatever it is, it’s significant.

[00:51:42.660] – Clay Brewer

Help them reach those goals. Like, Hey, how would it feel to earn 50 bucks this week by having a side hustle alongside your day job. Hey, the opportunities may be endless, but let’s start here.

[00:51:54.430] – Steven Peter Burke (Smiling Steve)

We can make this real. How would it feel to you if you could pay for groceries one week from your side hustle. One week a month, you paid your entire grocery bill for your whole family because you had a side hustle.

[00:52:08.950] – Clay Brewer

I think that’s an appropriate way to frame it because you can talk in circles when it comes to income claims, what may or may not be appropriate. It’s all about the narrative of how you sell it.

[00:52:20.200] – Steven Peter Burke (Smiling Steve)

Words matter. That’s something that we teach, that you put it in terms of something that’s believable and that they can relate to. Somebody who’s struggling, that’s… I talked to a girl one time working in a coffee shop, and her husband was a Starbucks here in Canada. And her husband had a full-time job, and she whispered to me across the counter, If I could just cover my mortgage every month. And I think it was like 800 or 900 bucks a month or something, that’s what mattered to her. And I said to her, I think I can help you do I think we can do that if we work together. I knew I could. That shows you guys where people’s heads are at, being able to pay the groceries one week a month from your side hustle or pay your mortgage or whatever, or pay your cell phone bill and your Internet bill with your side hustle. That’s real for a lot of people. Whereas When we’re talking to them about so and so made $16,000 last month, that ain’t real for a lot of people.

[00:53:36.180] – Clay Brewer

It may be real for someone, but it’s less realistic for that particular individual at that time. Again, it goes back to the typicality approach of what is a typical individual that’s joined this business expected to earn? For example, going back to the income disclosure statements that all companies should have at a minimum, if you have all different ranks and different achievable moments, but only one person or zero people actually hit the top mark, then why are you showing that? You’re selling a false reality and a false hope that might get people to join, but when they don’t make that million dollars a year or get that car bonus, that’s when the consumer complaints come to the forefront. If you have a expectation of $50, if they make $30, I wouldn’t think they would be upset as if they promised a million, correct? You know what I mean? Right.

[00:54:34.970] – Steven Peter Burke (Smiling Steve)

Same thing when we put it in terms of if you’re looking to make $800 a month and you make $500, would you be mad at me? That’s something I actually say to people. If you’re working towards this, you’re getting better at it, I’m helping you, and you don’t cover your mortgage, but you make 500 in a month, would you be upset with me? Right. And they always say no. And so we’ll work. We’ll work, we’ll keep doing those things and get your income up to the point where we do make what you need to make. Now we’re talking real. And income disclosure statements, if they’re not available from the company, that’s crazy.

[00:55:19.340] – Clay Brewer

Again, we like to always advise clients. If you’re a new company, you’re not going to have data to provide. But if you’ve been operational for a year or more, you should have something to I know someone. And there should be shown to all of your prospects that are being welcome to the opportunity along with the compensation plan and other things such as that.

[00:55:41.190] – Steven Peter Burke (Smiling Steve)

Yeah, I think you’re right. If you disclose it, why would you be scared of that anyway? If you disclose it, look at how many people we got making $200 a month. It’s crazy, right?

[00:55:51.520] – Clay Brewer


[00:55:52.820] – Steven Peter Burke (Smiling Steve)

Not a lot of people making $100,000 a month, but we got a lot of people making $200, $500, $1,000 And that’s what you’re concerned with, isn’t that correct? And they say, Yeah. I said, Well, the numbers are right here. And you’re making it believable. We’re getting them there. We work with them. Don’t drop people. You’ve got to help them. You have to help them. If they don’t have skills, guys, you’ve got to beg them to please study. What was it? What was it, Arnold Nightingale said? An hour a day. He said, An An hour a day. Look, 15 minutes a day while you’re doing your makeup or in the car or in the bus on the way to work or on a break eating lunch with a headset on, 15 minutes a day is enough for you to learn how to talk to people in a way that makes sense. Will you come back sometime?

[00:56:56.150] – Clay Brewer

No, absolutely. This has been a blast. I love talking. I could talk all night about this stuff because it’s one thing to be in the legal weeds of stuff. But then when it comes to the maybe operational realities of the marketplace and learning from people, it changes your perspective on, again, how to talk to people. I can be in textbooks all day, but then speaking to people in the field, it changes your mindset a whole lot. So it’s very important.

[00:57:20.170] – Steven Peter Burke (Smiling Steve)

Yeah. Dream building is a big deal, but you got to understand what people can accept. They cannot accept. They’re It’s not going to be their brain can’t get around the big numbers. Over time, they can change, but you got to build a dream that they can believe in.

[00:57:43.180] – Clay Brewer

It’s always better to overdeliver and under promise than the opposite.

[00:57:49.350] – Steven Peter Burke (Smiling Steve)

Coded bonuses, are they worth talking about or should we break off for ?

[00:57:53.840] – Clay Brewer

We can talk on them. It’s pretty much the same. Any questions you have, I’m happy to answer. I think they’re sufficient. It all goes back to customer acquisition. So what is really driving those commissions? That’s really should be the core feature for any company. No bonus in itself really is per se illegal, in my opinion, it’s just what behavior is being driven. Some drive recruitment behavior more than others.

[00:58:23.550] – Steven Peter Burke (Smiling Steve)

It’s like a fast start bonus.

[00:58:25.940] – Clay Brewer

Yeah, fast start bonus is a very interesting concept that I’d be happy to talk I’ll talk about in another episode or whenever you want to. That’s something that I could see the FTC may be angling towards with their recent trajectory. Again, it’s more of like a one-time thing, so the risk isn’t too crazy. But it could be argued that it’s more recruitment-based than not, but it needs to be based upon… I like tying a customer acquisition to any of those. You can have a fast start bonus if you recruit Steve, only if he gets two customers. That’s it. Then it’s being paid off of product sales and genuine customer growth.

[00:59:05.280] – Steven Peter Burke (Smiling Steve)

Let’s do that, Clay. Let’s get together in a couple of months or something and we’ll talk. Sure.

[00:59:09.030] – Clay Brewer

I’d love to.

[00:59:10.150] – Steven Peter Burke (Smiling Steve)

Delving to that. I’m sure there’s a bunch of things I’ll think of when we’re done here that I could have asked you.

[00:59:16.460] – Clay Brewer

Happens every time. Yeah, absolutely. But I’m sure hopefully we’ll have more cases to discuss next time as well. And there’s a whole lot coming up, hopefully soon.

[00:59:23.490] – Steven Peter Burke (Smiling Steve)

One day, guys, Kevin Thompson is going to be retired. And that’ll be Clay Brewer, who’s the big shot.

[00:59:30.650] – Clay Brewer

One day, maybe. One day. That’s the dream always, right? But no, I love working with Kevin.

[00:59:35.770] – Steven Peter Burke (Smiling Steve)

Just don’t show Clay this. Clay, don’t show Kevin this recording.

[00:59:40.180] – Clay Brewer

No worries. We’re all good. I love working with him, and I hope he’s around working with us for a long time. He’s a big performer of the industry. Of course. He knows his stuff in and out. So it’s a great pleasure. He sure does.

[00:59:50.460] – Steven Peter Burke (Smiling Steve)

So do you.

[00:59:51.940] – Clay Brewer

Well, thank you.

[00:59:53.330] – Steven Peter Burke (Smiling Steve)

I enjoyed it.

[00:59:54.520] – Clay Brewer


[00:59:55.580] – Steven Peter Burke (Smiling Steve)

I’ll send you a copy of the recording, my friend.

[00:59:57.630] – Clay Brewer

Yeah, I appreciate it. Great meeting you, and I’ll talk to everyone soon. Have a great night.

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