by Fred Abramson on September 8, 2011 · 0 comments
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Summertime has come and passed. It was a busy August in terms of news, with Hurricane Irene soaking the New York area, Steve Jobs relinquishing the CEO position at Apple and an ugly jobs report. Hopefully you escaped to a sunny destination or traveled to a far off land.
Since we are all back at work, now is an ideal time to look at what is really important for your business. If you are starting a new business you need to have goals. Goals are a vital to the success of any business. A goal is an outcome that you wish for that is measurable, actionable and specific.
If your goal is to have the best business in the world, you know that you need a first class product, great design and productive employees. A world class company also has their legal house in order. Do you?
- REVIEW YOUR INTELLECTUAL PROPERTY. Is the name of your company trademarked? If you created a YouTube video did you copyright it?
- REVIEW YOUR CONTRACTS. I have drafted many agreements for my clients that they use over and over again. Since laws change, your contracts may be outdated. If the services you have provided have changed, an inaccurate description in your agreement can cause headaches down the road.
- EMPLOYMENT LAW REVIEW. If you recently increased the hours of your tech consultant to over 30 hours, she may be considered an employee rather than an independent contractor. How about OSHA regulations, employment taxes?
- IS YOUR ADVERTISING IN COMPLIANCE WITH THE LAW? If you have an ongoing advertising campaign, be aware that there are rules you need to comply with. Under the FTC act
- Advertising must be truthful and non-deceptive;
- Advertisers must have evidence to back up their claims; and
- Advertisements cannot be unfair.
- BUSINESS SUCCESSION PLANS. Whether you run your business alone or have partners, you need to have a business succession plan in place. What happens to your business if you become incapacitated? If you have a business partner, what happens if she wants to leave the company?
This is an opportunity for you to make a difference in your entire life. You don’t need to be hit by a Honda Accord in order to focus on what is legally important for your business. Each time that you implement just one of the above legal goals, you will make a difference in your business.
The Law Office of Frederic R. Abramson represents businesses in New York. You can reach me at 212-233-0666
It’s 5:00 on Friday and your boss calls you into her office. You probably noticed that business has not been going well. A long time customer has left and there is simply not enough work to go around. Your boss, tearing a bit, breaks the news and offers you a severance package. Should you take it?
Believe it our not, you can negotiate a severance agreement.
- Understand that your emotions while be on high after you are initially handed the agreement. The worst thing that you can do is let your boss “have it.” Be cordial and ask for time to review the agreement. You have the legal right to do so.
- Don’t sign anything immediately. Your boss may ask you sign a waiver, which could release any future rights that you may have in the event of a potential lawsuit. So if you a fired while you are pregnant, waive your discrimination case goodbye.
- Be aware that your employer cannot withhold your wages if you fail to sign the agreement.
- Have you been paid all over your benefits? Review your employee handbook or employment contract to see if you are owed any vacation time.
- How is the severance payment being disbursed? In a lump sum or over a period of time. There could be tax benefits for choosing one form of payment over another.
- What health insurance is being offered? Look into possible of extension of your Cobra benefits.
- Your employer may want you to sign a non-compete agreement or non-disclosure agreement. If you sign a non-compete agreement, you may have trouble seeking new employment if the terms are not analyzed. A non-disclosure agreement may prohibit you from disclosing trade secrets to a potential new employer.
- Do you have any stock options?
- In some cases, your employee handbook or agreement may provide that your employer will pay your legal expenses for an attorney review your severance package.
- You can negotiate with your employer and agree to the language of your recommendation.
Don’t negotiate your severance agreement alone. The Law Office of Frederic R. Abramson reviews, drafts and negotiates severance agreements. Call me at 212-233-0666 for a free consultation.
A good supplier agreement is to designed to keep you out of court. It can also help you win a lawsuit if there is a dispute. If you have an ongoing relationship with a supplier, a well-drafted agreement is crucial. One especially thorny issue is creating a way to easily end a contract. If you have an arrangement with a supplier, there is normally an umbrella agreement which is succeeded by purchase orders.
Here is what you need to know when drafting an umbrella agreement:
- Gauge the volume and frequency of the supplies you will require. You should specifically identify the goods that are to be delivered. You should also leave room for anticipated problems, such as a downturn in the economy which could limit your ability to purchase goods.
- Is the contract exclusive or non-exclusive? Suppliers usually favor exclusive agreements.
- Negotiate a termination clause.
- Negotiate a way to limit liability. If you are supplying goods like food, you don’t want to be held liable for damages for lost profits if you fail to make a delivery on time.
- Term of the agreement. You should be wary of entering into an agreement for over 3 years. Who knows what your business will look like a decade later?
- Confidentiality. You probably don’t want your competitors to know the terms of your agreement. Any information gleaned from a supplier agreement can be used for competitive advantage.
PURCHASE ORDERS
- Identify each order and state that it is subject to the umbrella contract.
- Create a purchase order that you can re-use. It is best to leave time and quantity blank.
- Date the purchase order.
Be aware that problems with supplier agreements is a major source of litigation. I recently litigated a case between a supplier and a franchisee which was a result of a poorly drafted umbrella agreement that cost the franchisee $250,000.00.
If you questions regarding supplier agreements, contact me at the Law Office of Frederic R. Abramson at 212-233-0666.
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The constuction industry is subject to more than its fair share of litigation. This not because the people who you work with are bad people (even though there a few bad apples). It is because industry itself if very complex.
There are many factors of what makes a project sucessful. A successful project may not have anything to do with the parties involved. This includes anything from material shortages to the weather.
The people and companies involved in any given construction project are independent and often have competing business interests. The owner, contractor and architect are often at odds.
The time for an owner to begin thinking about construction litigation, which includes its avoidance, alternatives and costs is at the very beginning of the construction project. Obviously, the most important goal is to limit the possibility of a lawsuit as the most basic goal.
Unforutantely, due to the unpredicable nature of construction projects and the number of people involved in any given project there are likely to be disputes.
The time to consider litigation occurs before the point of confrontation. As an owner you should try to avoid it as much as possible by being aware of its possibility. You can do this by being careful about the people who you hire, and to define the legal rights and obligations of everyone involved in the project.
As an owner, the ability to avoid a construction lawsuit is made likelier by the following:
- A comprehensive background check of all the participants
- A strong set of contracts that is uniquely drafted to suit your needs. This means you should avoid using the same agreement for each project and should be aware of independent contractors.
- Setting out before the project each parties administrative duties and obligations.
You should be aware that even a contract that is drafted with every considering in mind will not inherently protect you from a lawsuit. However, with careful planning, the likelihood of your company being involved in a costly lawsuit diminished greatly.
The Law Office of Frederic R. Abramson represents both owners and contractors in drafting contracts and construction litigation. If you have any questions, call at 212-233-0666
Many contracts have either no provision directed at performance or have a provision requiring someone to use its best efforts or reasonable efforts. However, there is a big problem because there is no objective way in judging whether someone has performed his best efforts
One way to tackle this problem is by including specific performance levels in the contract. Here are a few way ideas:
- The smallest number of things sold within a certain period of time;
- The smallest amount spent within a certain period of time;
- The smallest amount of money spent within a certain period of time;
- The smallest number of client contacts witin a certain period of time.
From there, you can place a penalty provision for non-performance, examples include:
- The ending of the agreement;
- If the agreement is an exclusive deal, it can be changed into a non-exclusive;
- Loss of discounts.
Conclusion
It is often best to avoid court intervention to decide whether you or the other party used its best efforts to perform as per the terms of the contract. Be specific in defining the meaning of best efforts.
