Posted on | October 23, 2013 | No Comments
The US Securities and Exchange Commission today issued the new proposal for crowdfunding. The new rule will allow entrepreneurs and start-ups to solicit investments over the Internet from the general public. The proposed rule does include some auditing and reporting requirements and regulated broker-dealers or crowdfunding portals will be in the middle, but this is a major shift in the regulatory framework for investing in the US.
Currently, private companies are allowed to solicit only from accredited investors (those whose annual incomes exceed $200,000 or whose net worth, not including their home, is at least $1M). Under the proposed rule issued today, companies could raise up to $1M per year from unaccredited investors – those who fall under the $200K/$1M requirements.
The Reuters article is here:
Posted on | October 4, 2013 | No Comments
This article in the Wall Street Journal reminded me of clients who have had expressed interest in starting a brand new business because they have a great idea or a product or service.
Owning your own (successful) business is certainly very rewarding, but there are significant costs and risks involved.
There are other options outside the start-up track – and those options involve selling or licensing the idea to another company.
Some things to keep in mind:
1. Do you actually own the idea? Did you create this by yourself or with help? Do you work in a position that gives your employer ownership of or rights to the idea? Ownership of the idea – the intellectual property – is a key consideration and one that must be established before moving forward. If you’re not sure, check with an attorney who understands intellectual property issues.
2. Assuming the idea is owned by you, does it have intellectual property protection? As noted in the linked article, getting a patent would protect your great idea from being swiped away from you while you negotiate terms of a licensing deal with another business. Certainly, you can ask a potential buyer to sign a nondisclosure (or confidentiality) agreement, but nothing provides the protection of a patent. Can obtaining a patent be expensive? – Yes, but well worth it in many cases. You’ll need to work with a patent lawyer.
3. How much if your idea worth? Is there market demand? Are there similar products already on the market? Who are the major players in the industry? You’ll need to identify a potential buyer or buyers and come prepared to negotiate (my favorite activity). And successful negotiation begins with assessing your leverage. So know how your product will fit in to the market. Knowing it’s a “great idea” isn’t enough — you’ll need to understand how it can be successfully monetized. Once you understanding that, you can make decisions and negotiate terms with potential third party buyers.
Posted on | September 5, 2013 | No Comments
An October 1st deadline looms for Obamacare: providing notice to employees of the insurance exchanges under the Affordable Care Act.
Even though the requirement to provide insurance doesn’t extend to businesses with fewer than 50 employees AND the requirement has been delayed for a full year, most employers cannot afford to miss this notification requirement.
In short, any employer that is covered by the Fair Labor Standards Act (usually at least one employee and at least $500,000 in annual dollar volume of business) must provide notice of employees of the insurance exchanges by October 1, 2013.
Note again that this notification requirement applies to any business covered by the FLSA – even one with fewer than 50 employees!
Guidance provided here by the Department of Labor:
Posted on | August 12, 2013 | No Comments
As reported today by the Wall Street Journal, the IRS has initiated a plan to ensure tax compliance by small businesses. The report notes that letters requesting additional information on gross receipts were sent to 20,000 small businesses in the first wave.
The history of this dates back to 2008 when changes in the law gave the IRS more visibility into merchant card receipts of businesses. With that information, the IRS can target businesses which appear to have an unusually large percentage of revenue coming from credit cards. The upshot is that they want to discover whether all cash income is being recorded for tax purposes.
The link below is to a locked article on the Wall Street Journal’s page, dated 8/12/2013
Posted on | August 1, 2013 | No Comments
A good contract lawyer does two things: (1) she ensures that the language does indeed reflect the client’s intention and (2) she forces her client to think through all the details that the client might have overlooked. The first task is easy; the second can be extremely difficult. But if the lawyer succeeds at both tasks, then, as Martha Stewart would say, “It’s a good thing.”
As reported by Reuters, a decision in the Macy’s – Penney’s – Martha Stewart litigation is expected this week. As with almost all contract disputes, it will likely come down to the specific language in the contract. And it’s possible that this particular contract missed some of the devilish details.
The gist is this: in 2006, Macy’s and Martha Stewart signed a contract that gave Macy’s the exclusive right to sell Martha Stewart-branded home goods. That contract apparently contained an exception to the exclusivity: Martha Stewart was allowed to sell its own Martha Stewart goods in Martha Stewart retail stores.
So in 2011, Stewart and JC Penney announced a deal that would put a Martha Stewart retail store *inside* certain JC Penney stores, in a fashion similar, I imagine, to the Sephora outlets inside most JCPs. In addition, JCP planned to start selling Stewart-designed goods under JCP’s Everyday Living brand.
Macy’s, not surprisingly, didn’t buy the store-within-a-store plan, and sued both Penney’s and Stewart. The case is on appeal to the New York Supreme Court.
Penney’s primary argument is that the Martha Stewart “stores” that are inside the JCPenney stores fit within the exception that allows Stewart to sell goods in Martha Stewart retail stores. The definition of Martha Stewart Retail Store within the Macy’s-Stewart contract was apparently just broad enough for Penney’s to hope to get away with this argument, which Macy’s described as “crafted at the intersection of ingenuity and gall.”
It is likely that Macy’s will prevail. But imagine the expense undertaken on this. It’s not clear whether JCPenney signed the 2011 deal without having done decent due diligence with Stewart, or knew about the Macy’s-Stewart contract and forged ahead anyway, hoping to rely on this store-within-a-store argument.
Certainly, though, Stewart would have known the terms of the Macy’s deal and, it seems, intentionally breached it. Either way, Macy really had no choice but to fight back at no doubt great expense.
Even with a great contract, there are cases where you simply can’t keep the other party from breaching. But even in that case, the tighter the language in your contract, the better off you are to get the relief you want in court.
Posted on | July 23, 2013 | No Comments
I have a personal dislike of using battleground metaphors in the boardroom, so I was at first put off by this. The advice, however, was spot-on: training, continual, thorough, repeated, is the secret to business success…
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Posted on | July 19, 2013 | No Comments
Unfortunately for some, it is easy to make the mistake that securities law only apply to big banks and Wall Street firms. But even in transactions that seem private, the law does apply and fraud will be pursued. (There are unproven allegations here, obviously).
Posted on | July 10, 2013 | No Comments
This is interesting and important. Private placement offerings can only be sold to “accredited” individuals – these are folks with income and wealth that can presumably withstand a loss on an investment. That sale prohibition was accompanied by a ban on advertising to the general public. Now, as reported by the Washington Post (link below), the Securities and Exchange Commission (the SEC) is expected to lift that advertising ban. The underlying prohibition against sale to non-accredited individuals remain, although some advocates argue that the definition of accredited needs to be tightened.
Posted on | July 3, 2013 | No Comments
Thank you for your visit.
Although this blog is brand new, my law practice is not.
In fact, October of this year will mark my 18-year anniversary of the practice of law.
My experience has taken me ’round and ’round: I’ve sat at a deal table in Santiago, Chile, scraping from my memory every flake of high school Spanish to facilitate negotiation of a professional services contracts. I’ve explored London on weekend breaks from an assignment near Heathrow, hugging the left curb in my rental Prius. I’ve been in South Dakota in February to conduct a compliance investigation. And in Doha, Qatar, in a sweltering May to close an aviation contract.
I’ve worked in private practice and in-house. I’ve represented individuals, families, nonprofits, for-profits, partnerships, corporations, LLCs.
At the deal table, I’ve had the privilege of working with the best and brightest. And, at times, the disappointing and uncivil: I was once in a negotiation that fell apart after 5 minutes: doors were slammed, chairs tossed (but not by me).
I launched my private practice in 2012, for the first time (finally) working for myself, answering only to my clients.
I begin this blog now based on the following beliefs: I believe in commerce. I believe that smart and ethical people, through negotiation, can resolve any difference and can achieve any goal. I believe that (almost) everything is negotiable. I believe that a good lawyer always adds value to a transaction. And I believe that there is always room in the market for good lawyers.
My hope is to inform and education through this blog, drawing on my experiences, old and new.