Author Archives: Bart Eagle

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About Bart Eagle

Bart Eagle is an attorney concentrating in commercial law, litigation & mediation, and principal at Law Offices of Bart J. Eagle, PLLC in New York.
EMAIL: bje@barteaglelaw.com
BIO: About Bart
PHONE: 212.586.0052

Divergent Perspectives Converge in Mediation
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Divergent Perspectives Converge in Mediation | Bart Eagle

{3:40 minutes to read} The parties have been at it for a while, without coming to an agreement. When is the mediation “over”? In any mediation, the parties and the mediator may view the give and take differently. From the parties’ standpoint, they may think it’s over as soon as they receive the first demand or offer from the other side. If that demand or offer is significantly higher or lower than they expected, they may immediately feel that they are too far away for the mediation to be successful—and may want to end it right there. Scenarios like this are not unusual.

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Does an Agreement Have to be in Writing to be Enforceable?
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Does an Agreement Have to be in Writing to be Enforceable? | Bart Eagle

{5:45 minutes to read} Must your agreement be in writing to be enforceable? The answer is: Yes. Or no. In the world we live in, we make agreements with other people, with companies, and with other businesses. Sometimes they’re formal and in writing, but other times (in the real world), they are not. Can that agreement be enforceable if it’s not in writing? It could be. If it is in writing, is it foolproof? First, written agreements obviously are preferred. In a perfect world, all agreements would be in writing. How foolproof are they? To the extent that they clearly state the intentions of the parties, the parties should be able to rely on that agreement to enforce its terms. Clarity is what is important. Parties should try and make sure, and have their lawyers make sure, that their written agreements state very clearly what they’ve agreed upon.

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Mediation: An Attractive Alternative in the Commercial & Non-Commercial Division
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Mediation: An Attractive Alternative in the Commercial & Non-Commercial Division | Bart Eagle

{3:50 minutes to read} In one of my previous articles from June 2015,  I described a pilot mediation program launched that month by the Commercial Division of New York County Supreme Court to supplement its existing mediation program. That pilot program ended in late January of 2016; however, the Commercial Division has now launched a new pilot mediation program, as well as an expansion of the existing Commercial Division program. The Commercial Division in New York County handles commercial cases that have a minimum claim of damages of $500,000, exclusive of interest, punitive damages and attorney’s fees (with a few exceptions).

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Key Decisions to Consider Before Starting a Business
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Key Decisions to Consider Before Starting a Business | Bart Eagle

You have many choices. If on your own, you can be a sole proprietor. However, you should also consider various types of business entities: You can form a limited liability company, even if you are the only member. You can form a corporation. If you are starting the company with others, you could also form a partnership – general or limited. How to choose? What may seem like a simple question oftentimes may not be. Among the considerations should be protecting yourself (and any other “owners”) from personal liability, management, tax issues, and funding.

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Should I Agree to Arbitration? Part 2
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Should I Agree to Arbitration? Part 2 | Bart Eagle

{5:30 minutes to read} In my previous article, I provided an overview of arbitration and what happens if one chooses to take this path. In this continuation, I discuss discovery and motion practice, arbitrator selection and the hearing, and the finality of arbitration. Discovery and Motion Practice: The two main areas in which arbitration may differ from a lawsuit is discovery and motion practice. Oftentimes, the most time-consuming and expensive part of a lawsuit is discovery.

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Should I Agree to Arbitration? Part 1
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Should I Agree to Arbitration? Part 1 |  Bart Eagle

{5 minutes to read} People unfamiliar with the various forms of alternative dispute resolution often ask the difference between mediation and arbitration. In addition, they often want to know the difference between arbitration and a traditional lawsuit—meaning, going to court. The difference between mediation, which has been addressed in earlier articles, and arbitration is straightforward: In mediation, a neutral mediator will facilitate a negotiation between the parties with the goal of assisting the parties to arrive at a settlement that is reasonably satisfactory to all of them. The mediator makes no decisions, legal or factual; if the parties do not agree to a settlement, the case goes forward and would be resolved, if the dispute remains, in either arbitration or in court.

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Mediation: What to Expect
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Mediation: What to Expect | Bart Eagle

{5:10 minutes to read} You’ve been sent to mediation. What’s next? You’re going to mediation; you asked or agreed to go, or a judge sent you. It shouldn’t matter. Embrace the opportunity! This is a “no risk” opportunity to settle your dispute, early on, before investing significantly more time and resources, and to do so on your own terms; the outcome will not be in the hands of a judge or jury. You will also have an opportunity—perhaps your first, and maybe the only one you will have, at least before a trial—to meet and speak directly to the other party. So go prepared to engage; to explain your position; ask questions; express your thoughts; and to listen—both to the other side and the mediator.

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Equity vs. Law: Understanding the Difference
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Equity vs. Law: Understanding the Difference | Bart Eagle

{5:30 minutes to read} The decisions that parties make at the beginning of a lawsuit can have lasting consequences throughout the litigation. Many litigants have heard that historically, there had been a distinction between courts of equity and courts of law. Today, while there still exists a distinction between equitable claims, such as actions for an injunction, and legal claims, such as actions for tort or breach of contract, the same courts and judges hear both equitable and legal claims.

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New Overtime Rules Expand Coverage to Millions
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New Overtime Rules Expand Coverage to Millions | Bart Eagle

{5:15 minutes to read} The Federal Labor Standards Act (FLSA) and New York Labor Law each provide sections entitling employees who make less than a certain threshold income to overtime pay—meaning for any hours they work in excess of 40 hours per week. The federal law, which becomes effective December 1, 2016, raises the cut-off from $23,660 to $47,476 per year for most salaried workers. This means that more workers would be entitled to overtime if they work more than 40 hours per week. There are certain exemptions, generally, for people who are employed in a bona fide executive, administrative, or professional capacity. However, these exemptions are narrowly construed.

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Discovery Rules: Changes in the Commercial Division
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Discovery Rules: Changes in the Commercial Division|Bart Eagle

{4:55 minutes to read} In an earlier article, I talked about the importance of discovery and how the ultimate disposition of a case can certainly be affected—win or lose—by what happens. As lawyers and many clients know, discovery can be very expensive and time-consuming. The default for most attorneys is to ask for everything to make sure they have “covered the waterfront”; after all, one does not want to miss an important document they may need for trial. In so doing, however, the cost can be astronomical and can far outweigh what is accomplished by actually securing voluminous documents or pieces of information.

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The Defend Trade Secrets Act of 2016: Important Information About Protecting Trade Secrets
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The Defend Trade Secrets Act of 2016: Important Information About Protecting Trade Secrets | Bart Eagle

{4:30 minutes to read} Recently, I wrote about non-compete agreements, the enforcement of which are subjective, from judge to judge and even from state to state. In the article, I discussed some of the factors that may lead a court to determine whether a non-compete agreement is reasonable under the circumstances and when one is not. Far less problematic—and controversial—is a company’s right to protect its trade secrets; almost everyone would agree that a company has a legitimate interest in doing so. One way to try and accomplish this is to include clauses in employment agreements prohibiting an employee from disclosing trade secrets, about which they learn during their employment. A company’s interest in protecting its trade secrets was recently acknowledged by the passage of the Defend Trade Secrets Act of 2016 (the “DTSA”), a federal statute that was signed into law in May 2016.

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Non-Compete Clauses: A Thorny Issue for Job Candidates and Companies—and Attorneys
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Non-Compete Clauses: A Thorny Issue for Job Candidates and Companies—and Attorneys |Bart Eagle

{5:30 minutes to read} There are risks involved in non-compete agreements, which are often part of an employment contract, and employees and employers should be aware of them. There are many legitimate reasons why an employer may want to include a non-compete agreement in an employee’s employment agreement. However, in other instances, an employee may not have special value to the employer, but the employee may be required to sign an agreement containing a non-compete because, simply, the employer required it

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Discovery: A Litigant’s Frenemy
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Discovery: A Litigant’s Frenemy | Bart Eagle

{3:40 minutes to read} Cases can often be won or lost during discovery. When a dispute arises and a party hires an attorney, they will spend time, together, going over the facts, providing relevant documents, and giving the attorney enough information so that the attorney can provide advice as to the strengths and weaknesses of his client’s case, and the alternatives.

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Why Not Mediate?
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Why Not Mediate? | Bart Eagle

{5:20 minutes to read} In my last article I discussed using mediation in business and personal disputes, and I discussed how to get there and some of the benefits. Below I continue the discussion, delving into some of the rewards of choosing a private venue to settle disputes—even if it turns out that court is inevitable. In mediation, there is no formal process of discovery. And, if already in litigation, the parties may be sent to mediation before they have completed – or even begun – discovery. So what if a party feels they do not have the needed information to properly evaluate a settlement proposal, or make one?

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Must I Go To Court?
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Must I Go To Court? | Bart Eagle

{5:20 minutes to read} Clients often ask whether or not they must go to court. As in many areas, there is a simple answer and a not-so-simple answer. The simple answer is: if you were named as a defendant in a case and were served with the complaint, you must go to court. If you don’t, and assuming you were served properly and the complaint sets forth a legal basis for relief, a default judgment may be entered against you. It is a little more complicated if you are the party who believes that you have a claim. Must you go to court to sue? The choice is yours, and there are various considerations about whether you should do so; and when.

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Life As An Open Book
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Life As An Open Book | Bart Eagle

{2:45 minutes to read} Much has changed in the way we live and communicate. For many people, both in business and personally, that means emails and text messages have replaced carefully thought-out letters and memoranda. In business today, it is commonplace for individuals to send numerous emails or texts during the course of the day, rather than one comprehensive, well thought-out and well written memorandum or letter – even one transmitted by email. Far too often, people have developed a habit of putting something in a text or an email message – often times, a “stream of consciousness” rambling – without taking the time to review it carefully or making sure that it is entirely accurate – and without thinking of how it might be misconstrued.

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Look before you leap!
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Look before you leap! | Bart Eagle

{3:15 minutes to read} Very often, individuals and companies are presented with documents that they are required to sign in order to obtain a service, purchase goods or engage in a transaction. Unfortunately, these contracts can be lengthy, written in small print, and/or written in “legalese.” As a result, many people and small businesses do not fully understand the ramifications of the contracts they sign. Many others do not even read them, and fewer still contact an attorney to review the language for them. The contracts themselves can range from simple form agreements given to the average consumer to much more significant documents such as a lease or agreement for services.

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Who Benefits From Mandatory Arbitration Clauses? Part 2
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Who Benefits From Mandatory Arbitration Clauses? Part 2 | Bart Eagle

{4:05  minutes to read} Click here to read part 1. It is one thing when sophisticated parties, of relatively equal bargaining positions, opt to  include an arbitration clause in an agreement.  It is quite another thing when parties, even those engaged in commercial enterprises but of relatively unequal bargaining positions, agree, or are forced to agree, to an arbitration clause. An example of this would be an employment contract, where an employee must agree to a mandatory arbitration clause in order to get the job.  Similarly, customers – even sophisticated ones – who  open brokerage accounts typically must now agree to submit any and all disputes to arbitration or may not be able to open the account.  For better or worse, this has become de rigeur in the industry.

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Who Benefits From Mandatory Arbitration Clauses?
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Who Benefits From Mandatory Arbitration Clauses? | Bart Eagle

{3:15 minutes to read} Arbitration is a form of alternative dispute resolution that can take the place of traditional litigation. Arbitration is very different than traditional litigation in court, and the process has various advantages and disadvantages. A party can only be required to submit a dispute to arbitration if all of the parties have agreed to do so – either in advance, such as in a written agreement between them, or after the dispute arises. Arbitration can provide consenting parties with an effective and desirable alternative to litigation. On the other hand, arbitration can also result in the loss of rights and safeguards to parties, many of whom would not knowingly consent to the loss of such rights and safeguards if they had a choice.

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Can Oral Agreements be Enforced?
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Can Oral Agreements be Enforced? | Bart Eagle

{4:50 minutes to read}  Clients often ask their attorneys whether an oral agreement – one that is not reduced to a writing, signed by the parties – can be enforced. This can come up when the client thinks that he is owed something by another party, such as payment of a sum of  money or the performance of an act or duty;  or, the client may want to know his own obligations when such a claim is made against him. In a perfect world, oral contracts would be reduced to writing and signed by both parties, so that it is easy to see what the obligations and rights are of each party to the contract. In the real world, however, that often does not occur. When contracts are not reduced to writing, there are two issues that will always have to be addressed:  enforceability and proof.

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What Should a Non-Party to a Lawsuit Do If Served with a Subpoena Duces Tecum?
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What Should a Non-Party to a Lawsuit Do If Served with a Subpoena Duces Tecum? | Bart Eagle

{4 minutes to read} From time to time, individuals and companies will be served with a subpoena requesting the production of documents that may be relevant to a litigation in which that person or company is not a party. The person or party served may have no interest in the outcome of the litigation, no real knowledge of the underlying dispute, and may not have even known that it existed. What should that subpoenaed person or party do? What are their legal responsibilities?

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Will I Be Awarded Legal Fees If I Win?
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Will I Be Awarded Legal Fees If I Win? | Bart Eagle

{4:30 minutes to read} The awarding of legal fees is a sword that cuts both ways. Many clients, particularly those who believe that their adversary’s claim or defense is baseless, ask whether they will be entitled to recover attorney’s fees when they prevail in a lawsuit. After all, “why should I be out of pocket to collect what I am rightfully owed, or because someone wrongfully sued me?”

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Commercial Factoring: Are Clients Receiving All the Money to Which They Are Entitled?
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Commercial Factoring: Are Clients Receiving All the Money to Which They Are Entitled? | Bart Eagle

{6:40 minutes to read} Factoring, a form of commercial lending, typically offers two types of services to its clients: a degree of credit protection and providing the company with the ability to borrow against its assigned receivables. Factoring is especially prevalent in industries involving the manufacture and sale of consumer goods, such as the garment, furniture, and shoe industries. Companies in these industries are often faced with the need to raise money in order to finance their operations and to produce the following year’s line of products before the current year’s products have sold.

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In-House Counsel Too Costly? Have You Considered Using Virtual Counsel?
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In-House Counsel Too Costly? Have You Considered Using Virtual Counsel? | Bart Eagle

How can small and mid-sized businesses secure high-caliber legal advice? Large companies often have a general counsel on staff who is paid a salary and receives benefits to provide legal advice to the company. The general counsel may perform some legal services themselves and may also retain outside counsel, whom they will supervise, to provide other services as needed. Smaller companies have the same needs and deserve the same quality of legal services and advice; however, employing an in-house general counsel is usually not cost effective for such companies.

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Co-op & Condo Mediation is a Smart, Speedy, and Cost-Effective Way to Resolve Disputes
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Co-op & Condo Mediation is a Smart, Speedy, and Cost-Effective Way to Resolve Disputes | Bart Eagle

{4:30 minutes to read} For those living vertically in the city, there are many benefits – snow removal, maintenance, having someone to accept packages, and the proximity to great restaurants, theater, museums and music. There can also be many little annoyances, such as:

  • A neighbor playing music too loud;
  • Kids running around in the apartment above;
  • Cigarette or cigar smoke that sifts into one’s apartment;
  • Neighbors practicing the piano until all hours of the night; or
  • Neighbors who leave skateboards and other personal items in common hallways.

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Start Your New Business on the Right Foot: A Handshake Isn’t Sufficient!
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Start Your New Business on the Right Foot: A Handshake Isn’t Sufficient! | Bart Eagle

{5:45 minutes to read} Have you ever heard about the friends who went into business together, with great ideas, the best of intentions, and warm feeling for one another, only to have everything dissolve, leaving them with nothing but bitter feelings? If they had given more thought to their future business relationship and had the proper agreement drafted, could things have worked out differently?

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Lawyers & Clients: Build a Blooming Relationship
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Lawyers & Clients: Build a Blooming Relationship | Bart Eagle

{2:40 minutes to read} When a client first seeks an attorney for advice in deciding whether to pursue a claim or settle one brought by another, the relationship that is established at the outset and decisions made early on can have a significant impact on the ultimate outcome of the matter. It is the client who has knowledge of the facts and best understands his needs and interests; it is the attorney who has knowledge of the law, which is essential to helping the client achieve the best results.

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Commercial Division in New York County Supreme Court Launches Mandatory Mediation Pilot Project
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Commercial Division in New York County Supreme Court Launches Mandatory Mediation Pilot Project | Bart Eagle

{Read in 4:30 minutes} Mediation is an alternative dispute resolution (ADR) process in which adversarial parties engage in a negotiation with the goal of trying to arrive at a settlement acceptable to both sides. Mediation, at its most simplified, is a facilitated negotiation with a trained neutral mediator, who helps the parties identify and address the issues in dispute and helps them arrive at a mutually acceptable resolution. The mediator does not make decisions or issue rulings and the parties are free to choose to settle or not to settle. In fact, they can settle all of a case or only part of a case.

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Solving Financial Mysteries with Forensic Accounting
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Solving Financial Mysteries with Forensic Accounting | Bart Eagle

{3:40 to read} To most effectively represent the client, a smart attorney will often times call upon a forensic accountant to assist him in analyzing and preparing a case. By working in tandem with an expert, the attorney can provide the client with an assessment of the case’s strengths and weaknesses as well as its value at the outset. This allows the client to make intelligent and cost-effective decisions early on.

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