Category: Business Law

The Benefits of Getting an Attorney Involved Early in the Deal Process
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The Benefits of Getting an Attorney Involved Early in the Deal Process | Aimee B. Davis

{3:24 minutes to read} In October’s blog, Is a Letter of Intent Necessary in an M&A Transaction?, we suggested getting an attorney involved early in the deal process, even prior to finalizing a letter of intent. However, in transactions where there is no letter of intent, when is it appropriate to involve your attorney in the deal process?

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Think Before You Email!
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Think Before You Email! | Aimee B. Davis

{3:18 minutes to read} Have you ever sent an email you wish you hadn’t? The consequences can sometimes be catastrophic. One strategy for dealing with challenging or frustrating encounters is to write down everything you would like to say, and then not send the message. This allows you to step back and vent. More importantly, it allows you time to think about what you would like to say, rather than reacting quickly and emotionally. Often this exercise helps inform one’s actual response.

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Is the Discharged Employee Entitled to Severance?
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Is the Discharged Employee Entitled to Severance? | Bart Eagle

{4:15 minutes to read}  In my last article, we discussed termination of an employee and the implications affecting both parties—employer and employee. This article continues the employee-termination discussion in regards to severance. Employees are only entitled to severance if provided for in an employment contract.

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It’s Over: Ending the Employer-Employee Relationship in New York State
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It’s Over: Ending the Employer-Employee Relationship in New York State | Bart Eagle

{3:10 minutes to read} The termination of an employee oftentimes presents the same questions to an employer, when considering the termination, and to an employee, when confronted with it. These questions are both legal and practical. Can the employee be terminated? New York is an at-will state. If the employee does not have a contract entitling her to continued employment for a period of time and/or setting forth grounds necessary for termination, and if no discrimination is involved and the law is not otherwise violated, an employer can discharge an employee at any time for any, or no reason. In those instances, unless the contract between the employer and employee provides otherwise, the employee is legally entitled to nothing: not continued employment, not notice, and not severance.

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Is a Letter of Intent Necessary in an M&A Transaction?
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Is a Letter of Intent Necessary in an M&A Transaction? | Aimee B. Davis

{3:42 minutes to read} There’s a debate raging among transactional attorneys about whether entering into a letter of intent (LOI) in advance of negotiating a purchase agreement is a necessary step in the M&A process. An LOI summarizing the basic terms of a proposed deal provides an outline for the longer form purchase agreement. Some attorneys think it’s penny wise but pound foolish not to have an LOI.

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Selfie-Awareness
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Selfie-Awareness | Mark Kaufman

Recently the United States Court of Appeals for the Ninth Circuit made news when it granted appellate review of what rights a monkey has to his intellectual property. The case — Naruto, a crested macaque, by and through his next friends, People For The Ethical Treatment of Animals [PETA], Inc. v. David John Slater, et al. — settled before the appeal was briefed or argued. According to the settlement, the copyright will remain in the name of the human photographer whose camera was used by the animal — but 25% of future profits will go to charity to benefit wildlife preserves that protect macaques. First, some background. In 2008, a nature photographer named David Slater began following a group of crested macaques in Indonesia. On his second day trying to infiltrate a group of the macaques, he set up his camera on a tripod and left it out in the open. One macaque approached the camera and took dozens of pictures, including three “selfies.” Slater began to enjoy some commercial success with the photos when, in 2015, PETA sued him. The group sought a copyright for the monkey and to administer the resulting proceeds of the photo.

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Embracing the Change of Season
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Embracing the Change of Season | Aimee B. Davis

{3:36 minutes to read} As Oprah is to bread, I love summer! I love basking in the sun and watching the waves crash on the beach. I love socializing with friends, cooking and eating fresh fruits and vegetables. I also love the playfulness of the summer season, so accepting the transition from summer into fall is always a challenge for me. Why is it important to embrace the season you are in?

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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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How I Practice: An Interview with the New York State Bar Association
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How I Practice: An Interview with the New York State Bar Association | Deborah E. Kaminetzky

I am very honored to have had the opportunity to sit down with the New York State Bar Association and share how I practice law and organize my business. NYSBA has wonderful resources on their site, including the How I Practice section, which offers tips, tricks, and lessons to other attorneys.

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Think Before Delving into a Side Business
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Think Before Delving into a Side Business | Harlan Levine

{2 minutes to read} In addition to their core businesses, many entrepreneurs delve into side ventures. The reasons for doing so vary as much as the individuals themselves and include:

  • A means of supplementing one’s income;
  • Boredom, after several years in their core business;
  • Diversification to mitigate risk; and
  • The desire to keep up with others and maintain status in their community – often a “grass is greener” mentality.
In many cases, increased regulations have taken the fun and financial “gravy” out of their current businesses. The cost of compliance has become so burdensome that entrepreneurs begin to wonder why they are working so hard without the upside they envisioned would make it all worthwhile.

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Exciting News for Levin-Epstein & Associates
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Dear friends, clients, and colleagues: It is my great pleasure to share with you some exciting news for Levin-Epstein & Associates. I have been selected for inclusion in the 2017 New York Metro Super Lawyers List as a “Top Rated Business Litigation Attorney,” a distinction awarded to only 2.5 percent of the lawyers practicing in the New York metro area. It is especially rewarding to be recognized for contributions to the New York legal and business community.

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Business Owners! Compliance with Laws & Regulations has Become a Full-Time Job
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Business Owners! Compliance with Laws & Regulations has Become a Full-Time Job | Harlan Levine

{1: 40 minutes to read}  With so many new laws and regulations being enacted in recent months and years, it is not unusual for business owners to be unaware of or overlook those that have been in effect for several years. Often, such laws and regulations relate specifically to a particular industry or the locations where the business is situated or conducts business. Recently, a few of my clients were dumbfounded when they found out that New York City has a commercial rent tax that has been in effect for several years.

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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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Do Your Clients Consider You to Be a Trusted Advisor or a Scribe?
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Do Your Clients Consider You to Be a Trusted Advisor or a Scribe? | Aimee B. Davis

{4:00 minutes to read} As a solo, my role has shifted over time from acting principally as a legal scribe to more of a trusted advisor to many clients. Occasionally, a client makes it clear they prefer me to stay in my legal lane and not offer business advice. I find this tension exists for other professionals as well, so I interviewed Larry Cohen, Partner-in-Charge, Business Management Hospitality Group Leader at Marks Paneth LLP, to gain his sage perspective.

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Mr. President: May I Say Something?
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Mr. President: May I Say Something? | Mark Kaufman

As readers may recall, we previously wrote about the confidentiality agreement imposed by then-candidate Donald Trump upon those who worked in his campaign. In that agreement, the workers literally were required to consider, as the definition of “confidential,” anything that Donald Trump determined, in his sole discretion, to be confidential. Now, he is President, and he apparently thinks that’s still true (presumably without doubting whether it was true before he was President).  Trump seems to see his view of confidentiality (and non-disparagement) is enforceable upon any and all U.S. Government employees — including ex-FBI Director James Comey, who did not sign any such confidentiality agreement, nor could be compelled to do so. Apparently, that’s why he threatened to bring a lawsuit against the former FBI director on the basis of “leaking.”

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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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A Tale of Three Appraisals
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A Tale of Three Appraisals | Mark Kaufman

Once upon a time, not too long ago, there was a contract and a client. The contract gave the client an option to buy a business based on obtaining three appraisals. After the first two appraisals were for the same amount, the seller told the client that he would waive the third appraisal. The seller tendered a contract of sale for $3 million. A couple of weeks passed, the attorneys exchanged suggested revisions, but on the day before the deadline to exercise the option, the seller sent back the contract with a surprise: He has changed it, increasing the price of the sale by $500,000, based on a third appraisal that he had obtained (despite his stated intentions).

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Protect Your Rights by Staying on Top of Important Business Deadlines
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Protect Your Rights by Staying on Top of Important Business Deadlines | Harlan Levine

Owners of small businesses face many deadlines in the course of running their businesses. These deadlines may relate to regulatory compliance, contracts or litigation. It seems that new regulations are being passed every month.  In New York, for instance, the paid family leave law goes into effect on January 1, 2018.  Since this program is funded by employee deductions, the law provides that employers can begin making applicable deductions beginning July 1, 2017; only a couple of weeks away.

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Do it Right From the Start: Business Agreements Among Co-Owners
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Do it Right From the Start: Business Agreements Among Co-Owners | Harlan Levine

{2 minutes to read} If you co-own a business or are considering entering a business partnership, have you drawn up a shareholders’ agreement or operating agreement? Oftentimes, partners are so excited and optimistic about building their business that they overlook this important document.  My experience has shown that partners who are long-time friends or family may be most in need of a document that sets forth their rights and obligations toward one another. Even the closest of relationships can go south and frequently do.

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5 Things Every Private Company MUST Understand before Launching an Equity Incentive Plan
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5 Things Every Private Company MUST Understand before Launching an Equity Incentive Plan | Bettina Eckerle

There is a point in the life of every start-up when it needs to establish a plan to reward its employees for their service by giving them a piece of the pie, i.e., their share of the potential upside. Being a 100% upside person myself, most employees drawn to start-ups tend to be more interested in the possibility of hitting a home-run rather than the fixed cash payment every month.

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Mediating Family Business Disputes
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Mediating Family Business Disputes | Gary Shaffer

{3:42 minutes to read} In my previous blog post on this topic, I described some of the general issues that arise during a mediation involving an intra-family commercial dispute. These included:

  • Resentments built up slowly over time;
  • Allies and enemies;
  • Divergent recollections; and
  • Emerging “alternate truths.”
The first reported case involving these kinds of matters goes back a long way. It’s found in the book of Genesis, in the paradigmatic dysfunctional family story of Isaac, Rebecca, Jacob, and Esau.

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Termination Rights Update: The (British) Empire Strikes Back
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{7:12 minutes to read} OK, the U.K. isn’t the British Empire of yore, but I couldn’t resist the title. In a prior post, we discussed a perennial problem faced by copyright legislators. Creators often have little bargaining power at the outset of their careers, and neither creators nor production companies (here meaning the industry gatekeepers: publishers, production companies, record companies, etc.) have a reliable method for measuring the commercial success of a work before it’s published. Consequently, if copyright legislation allows irrevocable transfer of the copyright in a work, creators will inevitably grant to production companies for a pittance masterpieces with massive commercial upsides, in which they rarely share.

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Coping with a Computer Crash? Let it Go! Let it Go!
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Coping with a Computer Crash? Let it Go! Let it Go! | Aimee B. Davis

{3:30 minutes to read} In February, I experienced every computer user’s worst nightmare. My computer crashed, and unless I was willing to pay $3,000 to a forensic expert (a/k/a a professional hacker), nothing was retrievable from the hard drive. For several weeks prior to the crash, whenever I turned my computer on, it sounded like a plane about to take off. So, the crash was not entirely unexpected. In anticipation of the inevitable, I purchased a new computer, but unfortunately, my hardware died before I had a chance to set up the new system and transfer the data.

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Take the Gig, But Lose the Content?
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Take the Gig, But Lose the Content? | Mark Kaufman

Parties, events, and weddings are the lifeblood of working musicians. It’s money in the hand, as opposed to what might come out of royalties down the road. This incentive is what led a client to reach out to me recently; he had a great gig booked, was looking forward to it…and then the contract came. The event is being hosted by a large and well known corporation, at a third-party venue, and the pay is good enough to warrant calling an attorney. The contract not only requires each performer to waive their rights of publicity/privacy (in their name and likeness, so photos posted on the internet won’t garner a lawsuit), but also provides, in essence, that “you allow us to record your performance, and you grant us an irrevocable worldwide in perpetuity license to use your performance.”

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What is the Best Legal Structure for Your Start-Up?
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What is the Best Legal Structure for Your Start-Up? | Bettina Eckerle

Some of the questions I get asked by my start-up clients are perennial in nature, with the most common being: Do I have to form a legal entity, and if so, what kind and why? Entrepreneurs have a number of legal structures available when seeking to capitalize on a million-dollar idea. Each type of entity has distinct advantages and disadvantages that I discuss below, and the decision should be tailored to your individual situation. The choice will impact the amount of tax you pay, the amount of paperwork you are required to do, the personal liability you face, and your fundraising activities. While there are a number of different kinds of entities, I am focusing here on the most common—the sole proprietorship, the LLC, the S-Corporation and the C-Corporation.

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