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Business Law

Wednesday, November 1, 2017

Common Area Expenses in Commercial Leases

There are different types of commercial leases, such as gross leases, modified gross leases and net leases.  One variation of the net lease is a “triple net” lease, in which the tenant is liable for a net amount of property taxes, insurance and common area maintenance relating to the property they are possessing.  Most of the time, additional fees in the form of common area maintenance expenses come up in the context of a triple net lease.  Landlords ask tenants to pay these fees so that they contribute to the cost of maintaining common areas such as entranceways, walkways, parking lots and hallways, as well as services enjoyed by the tenant such as janitors, security and landscapers.  These fees are in addition to a rental payment and can be substantial depending upon the situation. 


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Monday, October 30, 2017

Do Single Member LLCs Provide Asset Protection?

A limited liability company is a very popular business form that combines some of the best features of a corporation and a partnership.  Like a partnership, an LLC is taxed through its individual members.  Like a corporation, it provides limited liability to its members.  In most situations, the personal assets of LLC members cannot be reached for the debts or liabilities of the business.  But, also similar to a corporation, there are certain scenarios where personal assets can be reached.  Most LLCs have more than one member.  In recent years, a variation called the single member LLC has become widely used.  As the name suggests, these LLCs have only one member.  While the structure and organizational requirements of single member LLCs are essentially the same as ordinary LLCs, there has been some uncertainty as to whether these businesses afford their members the same type of limited liability.


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Friday, September 29, 2017

Legal Concerns When Doing Business Online

We live in a digital world and if you are not doing business online you could be missing out on the profits and other benefits of this marketplace.  If you want to expand your business horizons using the internet, you should be aware of the legal implications that may come along with the benefits.  You should make your customers aware of your policies when doing business online and it is also imperative that you tend to intellectual property concerns at the same time.


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Tuesday, September 5, 2017

Legal Concerns for Businesses Engaged in Social Networking

Social media is a phenomenon and in this day and age, it is rare that an individual, organization or business does not utilize it.  The use of websites like Facebook, Twitter and Linkedin can be of great benefit to your business and can assist in advertising, marketing and branding.  But, it is important to remember that their use is not without legal pitfalls.


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Thursday, August 17, 2017

What is a mechanic's lien?

A mechanic's lien is not just for mechanics.  It is a legal tool used to protect workers and suppliers who contribute the labor and materials used to improve a property, real or personal.  Workers and suppliers can file a mechanic's lien if they do not get paid and may be able to force the sale of the property to receive payment. 


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Wednesday, July 26, 2017

How’s your Lawyer’s Math?

Perhaps math isn’t every lawyer’s strong suit; although some lawyers prefer to stay away from fractions and decimals, it doesn’t mean they aren’t able to do math when needed to help their clients.


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Monday, June 26, 2017

Entrepreneurial Immigrants: Building the American Dream

The American Dream of starting your own business and pulling yourself up by your bootstraps is alive and well. In fact, it is the creation and growth of small businesses that is instrumental in helping America recover from the Great Recession. What many do not realize is that a significant percentage of new business ventures in this country are started by immigrants.  Despite their business startup prowess, Immigrants face a multitude of legal issues as they start new ventures in the United States.

If you are an immigrant and are considering starting a business in your new homeland, there may be a number obstacles ahead of you. At the top of that list is obviously obtaining legal status for yourself, your family, and your employees. America welcomes innovators and business creators, but obtaining legal status is never easy. Thankfully, there are several paths to legal status available to entrepreneurs. Working with an experienced immigration attorney is the best way to figure out which options will work for you.

Providing employment for family members and friends is one of the rewarding aspects of being a small business owner, but immigrants must strictly adhere to all laws governing the employment of non-citizens. If you are caught violating this law you could lose your business and put your legal status in jeopardy.

Immigrant entrepreneurs may also face discrimination. If you think that a lender, supplier, or other business-related contact has treated you unfairly because of your nationality, and your business suffered, you should contact an attorney. An attorney can help you seek compensation if appropriate, and can help you negotiate and enforce future contracts.

There are also unique opportunities in the business creation world for immigrants.  As newcomers to an area, immigrants have the ability to see gaps in the market that others may not notice. A business attorney can help you take your vision and make it a reality by helping you through the formation and permitting processes.  The government also has several special programs that are designed to help minority and woman-owned businesses flourish. Many immigrant business owners are able to take advantage of these programs.

Starting a business is challenging regardless of whether you’re an immigrant.  The pride of owning your own business, seeing it succeed and living the American Dream more than makes up for the trials and tribulations that founders encounter.


Monday, June 12, 2017

Federal Trademark Registration

There are many advantages to registering a mark with the United States Patent and Trademark Office (USPTO).  A licensed trademark can provide “constructive notice” to customers on a national basis.  Moreover, if there is a lawsuit, a valid registration can be used to substantiate or prove ownership of the mark. 

A trademark is used to inform customers of the source of the items that are being sold. The “source” of the goods or services denotes the company or business that is associated— generally the seller or manufacturer.  Trademarks are implemented and enforced to prevent confusion among customers in intrastate and interstate commerce.  For example, if two businesses sell the same type of product, one brand may sell better quality; the other may sell knockoff goods.  The trademark associated with either brand will indicate and alert the customers to the type of quality and goodwill of the particular company. Both factors play a substantial role in a company’s sales and revenue production.   

To prevent conflict, it is essential to conduct a trademark search prior to filing an application. Without  a search, there is a risk of great expense in the future.  For example, if another business in the same industry files a lawsuit claiming a similar trademark, and that business wins the case, the defendant may be obligated to alter any merchandise that lists the prohibited trademark.  When all is said and done,  sued company may not survive. 

Trademark searches can be very complex because they involve a thorough analysis of registrations under both federal and state law. It is possible for an entity to have legal rights to a mark, even if it is not registered.  These are typically called “common law” unregistered marks.  Therefore, a search will often surpass the information listed on the USPTO’S “Trademark Electronic Search System” (TESS) database. 

On the other hand, if goods or services are being offered by a third party under a similar mark, but the goods or services are very different and the industries are separate, then two similar marks may be allowed to exist simultaneously.  Furthermore, if a trademark application has been denied, an attorney can initiate an appeals process with the administrative board.  The “Trademark Trial and Appeal Board” (TTAB) is charged with the task of reviewing the case.  

Even if a trademark is granted, it is often necessary for an attorney to enforce the mark against others who attempt to usurp the mark.  For example, an attorney can draft and send a “cease and desist” letter to any entity using the contested trademark for its business.  If the entity does not stop using the mark, a lawsuit can be filed. In dealing with trademark issues, it is important to consult with a competent business attorney to prevent future litigation and unnecessary expenses, and help ensure future prosperity. 


Monday, May 29, 2017

Obtaining Venture Capital

It is no secret that it takes money to make money.  Not all business owners have the money they need to get their ventures off the ground and therefore many require financing. 

Venture capital is a type of financing that is different from the financial support a business would customarily obtain from other lenders.  Venture capital is usually reserved for businesses that have high growth potential but also involve high risk.  Most of the time, these investments are unsecured and are in exchange for a stake in the business or a management role.  Venture capitalists often want to be involved in the operational matters relating to the business and this type of relationship might not be right for all organizations.  In many instances, small start-ups and those involved in the technology field obtain venture capital to get their businesses up and running.

While venture capital is not as common as traditional forms of financing, it can certainly give a business the boost it needs to become successful.  This type of financing is not as easily obtained as other forms and a business interested in it must have the right approach.  The business must be based on a unique idea that is not available in the current market.  Investors want to know that there is a need for the product and that there will be demand.

Business owners seeking venture capital must also have a comprehensive business plan that provides as much detail as possible.  The business plan should include industry considerations, factors that can propel the business or that may become an obstacle, and of course, financial information.  The financial overview should include information from the past (if applicable), present and future projections.  Venture capitalists want to have confidence that the business will be successful and nothing says that like past performance.  If people have already paid for the product, investors want to know that.  Therefore, this information should be included and highlighted in the financial portion of the business plan.

Those seeking venture capital should also use all of the avenues available to them to build a network including face to face interactions and online communities.  For many investors, the team that is proposing the investment is of the utmost importance.  Business owners should seek to surround themselves with dedicated individuals that work well together and have the ability to evolve or adapt as the company grows if they want to attract venture capital.

If you are seeking venture capital or are in need of an attorney to negotiate or handle the formalities involved in an investment, contact us today.


Monday, May 8, 2017

Who Owns A Business's Customer List?

Many businesses have customer lists that they consider their own private property.  It is common, however, for sales representatives and other employees to regard customer lists as theirs too, something they can take to a new employer. Employment agreements, confidentiality agreements, non-competes, and non-solicitation agreements can all be used to eliminate confusion over whether a customer list is transferable or not. 

In the absence of clear contractual protections, however, case law and state trade secret laws may decide whether a list is the exclusive property of a business.  If the list is a "trade secret," a business owner may have an easier time protecting it and obtaining damages for its use by ex-employees and competitors. The Uniform Trade Secrets Act, that has been adopted by most states and the federal Defend Trade Secrets Act provide for penalties and remedies for the misappropriation of trade secrets.

When is a list a trade secret?

Generally, a list receives "trade secret" protection if, first, it contains information not readily ascertainable from public sources.  Merely listing customers and general contact information is usually not enough to elevate the information to trade secret status. Second, owners must usually take some measures to keep the information confidential.

What steps can a company take to ensure that a list is viewed as a trade secret?

The following are elements which, when present, can lead to a customer list being deemed a trade secret.

• The list contains unique, non-public information about each customer, such as ordering history, needs and preferences, and private phone numbers and e-mail addresses.  The more a customer list contains valuable details compiled about each customer, the less likely a court is to say that the list could have been readily assembled from public sources. 

•  The list is marked "private" or "confidential," and employees are informed that it the property of the company. 

• Electronic versions of the list are password-protected, and access is limited to certain users.

• Printed copies are kept under lock and key.

• When the list is shared with third parties, there is a confidentiality agreement.

• The owner can show that time and effort were invested in building and maintaining the list.

A recent case involving former employees of an insurance company shows how these factors can influence a court.  In that case, the customer list contained more than just customer names, birth dates and drivers' license numbers.  It also contained laboriously compiled information about the amounts and types of insurance each customer had bought, the location of insured property, the personal history of policyholders, policy termination and renewal dates, and other potentially valuable details.  The list conferred a powerful, competitive advantage and the court deemed it a "trade secret."

Meeting the criteria spelled out in that case and in the suggestions above does not guarantee that a customer list will be deemed a protected trade secret.  It could, nonetheless, increase the odds.


Monday, April 24, 2017

The Parol Evidence Rule & How it Affects Your Contract

One of the purposes behind memorializing an agreement in a written document is to ensure that the parties to the contract do not recant what they originally agreed upon.  Often, parties may dispute contractual terms if contracts are not working out in their favor or are resulting in negative or unanticipated consequences.

When a document is drafted by an attorney, parties usually feel more confident and secure about the transaction. A legal document will help prevent any future deviations from its original intent because all aspects of the matter have been stipulated in the final written document.   

If there is any disagreement regarding the written contract, the court’s consideration of evidence is limited.  For example, the courts may look into the prior deals between the parties and check out industry practices as a means of comparison.  However, it is typically prohibited to admit evidence of prior agreements or negotiations of the parties on the same contractual matter at issue.

The court may also inquire as to whether the agreement is partially or completely integrated. A fully integrated document is one intended by the parties to represent all of the terms to the exclusion of any prior writings or oral agreements.  If the agreement is fully integrated, then all other information will likely be excluded. On the other hand, if the document is only partially integrated, the court may take note of circumstantial evidence if such evidence does not contradict the agreement. 

“Parol evidence” is generally oral evidence.  It is beneficial and may be admitted under certain circumstances after the parties agree to a final written agreement.  For example, if the parties to the contract made a mistake, such as omitting or mistakenly listing a term, parol evidence may be considered.  In that case, the option of bringing in subsequent agreements in limited circumstances may be available.  

Parol evidence also comes into play when the writing of the document is unclear or if there is a dispute as to the meaning of certain terms within the contract.  Finally, new evidence is admissible if there is illegality or fraud relating to the contract.  Conferring with a contract attorney will help to clarify how parol evidence rule may affect current and future dealings.


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