Category: Business Law

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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Intellectual Property: Are You Set Up For Success?
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Intellectual Property: Are You Set Up For Success? | Bettina Eckerle

One of my mantras when advising clients is to pay particular attention to their intellectual property when thinking about building value in their companies. This requires a comprehensive IP strategy that covers IP creation and protection. It is best started from the get-go, but it is never too late. You’ll need it to build and protect your IP assets to help you to monetize what you have built.

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Start-Ups: Get Your Pre-nup
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Start-Ups: Get Your Pre-nup | Bettina Eckerle

Two or more people decide to launch a new business, and this is how it typically goes down regarding the relationship between them: "We have known each other for a long time, or our interests are totally aligned and we see it through together through the exit, or what can possibly go wrong, let’s not think about worst case — so a handshake must surely be enough." Yeah, right. Until it isn’t.

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Can You Minimize Publication Costs by Forming an LLC in Albany?
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Can You Minimize Publication Costs by Forming an LLC in Albany? | Aimee B. Davis

{3:06 minutes to read} In New York State (NYS) every new limited liability company (LLC) must announce its formation by placing notices in two publications for a period of six weeks, at a cost of up to $2,000. This revenue generating mechanism applies to domestic LLCs as well as foreign LLCs seeking to qualify to do business in NYS. Although investors and attorneys have argued that such a “tax” drives new business away from NYS, the legislature has consistently affirmed this mandatory requirement.

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3 Essential Tasks for Founders Starting a Venture
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3 Essential Tasks for Founders Starting a Venture | Bettina Eckerle

As I’ve written before, the race to opening your new venture is characterized by expansive enthusiasm—but that doesn’t make having important legal safeguards any less important. Unfortunately, founders often do not engage in the necessary legal counsel to guide them through the process. In this post I present three essential tasks that, considering the implications of doing them incorrectly, make investing in legal counsel worth every penny.

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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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Which Entity Should You Choose When Starting A Small Business?
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Which Entity Should You Choose When Starting A Small Business? | Deborah E. Kaminetzky

Choosing a Business Entity – Which One is Right for Your Business? Now that you have decided to launch a business, you need to decide which business entity is right for you. I’ll explain the differences between sole proprietorship, partnerships, corporations and limited partnerships. I cannot stress enough the importance of having a discussion with your CPA or tax adviser as to how each entity may affect you and taking that into consideration when making a decision.

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Small Business Considerations When Deciding on Location and Space
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Small Business Considerations When Deciding on Location and Space | Deborah E. Kaminetzky

Starting a new business is exciting! One of the most exciting pieces is deciding on location. I can not stress enough that you need a lease or a license. It might seem like a wonderful opportunity to rent a small space inside another business without a lease—after all, you have no obligation, so if the business doesn’t do well, you can just walk away. You, however, are not protected, and just like you have no obligation to your new landlord, they have no obligation to you. You could be asked to leave if they decide they need the space or someone else is willing to pay more. This can leave you in a precarious position.

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Giuliani to Be Cybersecurity Advisor?
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Giuliani to Be Cybersecurity Advisor? | Aimee B. Davis

{2:54 minutes to read} In light of the hacking allegations into the DNC’s and Hillary Clinton’s emails during the 2016 presidential election, I’ve been thinking about cybersecurity. Throughout my career, I’ve focused on the use and protection of confidential information, and I’ve often wondered how to effectively prevent cyber-incursion. For nearly as long as I’ve practiced law, I thought that measures taken by the legal community seemed inadequate, because they were generally focused on mitigating liability after such an event occurs, rather than finding solutions to prevent breaches from happening in the first place.

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Countdown To Launching Your Business: Key Legal Safety Checks
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Countdown To Launching Your Business: Key Legal Safety Checks | Bettina Eckerle

I advise many entrepreneurs who are in the process of starting a new business. Most of them are bootstrapped with little cash to spare on “luxuries,” like obtaining comprehensive legal advice. I can assure you based on my experience that some important issues should really be carefully deliberated and analyzed on day one. In this post, I aim to give you an overview of some important steps on the road to protecting and growing your company’s true value.

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What It Means to Be a Resourceful Attorney
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What It Means to Be a Resourceful Attorney | Harlan Levine

{3:10 minutes to read} Your attorney is a valuable resource—take advantage of his contacts. When an opportunity or problem arises, clients often do not hesitate to call their attorney. In addition to legal work, however, many attorneys have exposure to a network of other clients and business contacts that clients can benefit from. Your attorney can be a valuable resource for information, opportunities, and networkingwhether in your core business or a business in which you’d consider diversifying.

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Ghana: A Top Choice for Businesses Entering the African Marketplace
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Ghana: A Top Choice for Businesses Entering the African Marketplace | Tatenda Aloy Musewe

Entering an African marketplace requires rigorous strategic planning that incorporates the business’ goals and the market’s suitability to those goals. Naturally, access to accurate information is critical to the success of the business. In African jurisdictions, practice often differs greatly from expectations created by statutes, regulations, case law (where it exists), and government-originating communications. In addition, clients usually have concerns about political and economic stability in their regions of interest. These concerns have merit. 

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Are Your Marketing Efforts Visible?
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Are Your Marketing Efforts Visible? | Aimee B. Davis

{3:18 minutes to read} I like to say that everything I know about marketing, I taught myself. I didn’t study marketing in school. I never even took a marketing course. However, as the proprietor of Aimee B. Davis Law P.C., I’ve had to learn a great deal over the past 7 years about the best ways to promote my “laptop” law practice, but there is always more to learn about marketing in the digital age.

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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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A Curious Case of Fraud and Bankruptcy
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A Curious Case of Fraud and Bankruptcy | Mark Kaufman

A new client came to me admitting that he’d been defrauded hundreds of thousands of dollars. While the most direct route would be to sue the other party now and ask questions later, it’s in my client’s interest to get a result that’s actually payable—not to mention that unnecessary litigation is not a good use of money. For his part, the debtor claimed to want to do the right thing and create an agreement that would allow him to pay the debt back over time. This led me on a law-finding mission to determine how my client might be impacted if the debtor later filed for bankruptcy. Would an agreement constitute a waiver of my client’s rights to hold the debtor liable for the fraud?

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What Would Darwin Say to Today’s Businesses? Adapt!
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What Would Darwin Say to Today’s Businesses? Adapt! | Harlan Levine

{4:15 minutes to read} To appeal to new customers, businesses—and their owners— must be adaptable. Two weeks ago, I met with a potential new client who happened to be in his early 30s. As usual, I wore a suit and tie to our meeting. I thought one could never go wrong dressing like that, and that it’s always a safe bet; but for the first time, I felt there was a generational disconnect. Had I dressed neatly, but more casually, I would have been perceived more as a peer that the potential client could trust and relate to.

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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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How to Obtain Financing for Your Business
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How to Obtain Financing for Your Business | Aimee B. Davis

{3:48 minutes to read} Because I’ve represented several clients in the fashion merchandising industry, and have over 20 years of experience negotiating a wide variety of corporate transactions, I recently attended an Accessories Council event about financing sources for fashion and accessory businesses. The presentation was made by Paul Schulinder, SVP of Rosenthal & Rosenthal.

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Increased Rights for Whistleblowers in the Private Sector
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Increased Rights for Whistleblowers in the Private Sector | Mark Kaufman

A recent court decision in Kings County called Della Pietra v. Poly Prep Country Day School has expanded who can bring a cause of action under whistleblower provisions of the New York Not-for-Profit Corporation Law. While the case is significant, and potentially persuasive, it is not a binding precedent. The facts of the case are interesting. Della Pietra was working at Brooklyn’s Poly Prep Country Day School when an administrator, employees, students and alumni took a trip to Cuba, apparently for the stated purpose of “a learning experience.” Indeed. Pietra became privy to what really occurred in Cuba: underage drinking, smoking, and participation in prostitution. When she went to the Board of Trustees and reported what she knew, she was allegedly harassed, defamed and ultimately fired.

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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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Get It In Writing!
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Get It In Writing! | Mark Kaufman

Sometimes, in the heat of a new project or business opportunity, slowing down to make a written agreement seems boring, unnecessary, and even adversarial. When everything is going well, the parties can feel that reducing it to writing means they don’t trust each other. But an interesting, recent case illustrates exactly how important it is to “get it in writing”—and offers a lesson to anyone to confirm what each side expects in order to avoid a substantial misunderstanding.

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Let’s Go Work for Facebook!
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Let’s Go Work for Facebook! | Aimee B. Davis

{3:54 minutes to read} In last month’s blog, I mentioned that I regularly attend panel discussions, seminars and business development meetings to meet potential clients, confer with like-minded professionals, and learn new things along the way. I recently attended a presentation at Facebook’s NYC headquarters regarding How Social Media is Impacting Elections. The strategic use of social media seemed like a relevant topic, before the Republican nominee proved himself to be uncontainable in his Twitter rants.

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Trump’s Confidentiality and Non-Disparagement Agreement Is Not Terrific. Believe Me.
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Trump’s Confidentiality and Non-Disparagement Agreement Is Not Terrific. Believe Me. | Mark Kaufman

Recently Buzzfeed News published a reprint of part of a non-disclosure/non-disparagement agreement between Donald Trump’s campaign and anyone who works or volunteers for it — and it made me wonder just how enforceable it is. Under New York law, it’s pretty difficult to avoid a prohibition against sharing confidential information. The courts generally support the notion that if someone has information that’s confidential and proprietary (maybe even unique) to a company, the company should be able to protect itself, with very few exceptions. So, on its face, this agreement might be “fine.”

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Bottom Lines: Don’t Reveal, But Do Discuss
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Bottom Lines: Don’t Reveal, But Do Discuss | Gary Shaffer

{3:54 minutes to read} In my last blog I discussed why you should not reveal your bottom line during a mediation. You can read that here. My teaser line at the end was that it’s important for attorneys and clients to discuss bottom lines. And that discussion may have to occur several times. Parties generally enter a mediation with very different ideas as to what a case is worth or what it should settle for. The plaintiff thinks the defendant should take out the checkbook and be prepared to write a check with lots of zeros. The defendant thinks that any check should contain only zeros.

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