When To Call Your Lawyer:
A Seminar for Business Owners & Executives
Presented By:
Stefanie R. McNamara, Esq.
Rikki L. Field, Esq.
Annmarie Simeone, Esq.
Andrea S. Glaser, Esq.
Margaret Raymond-Flood, Esq.
Melinda Fellner Bramwit, Esq.
The material provided herein is for informational purposes
only and is not intended as legal advice or counsel.
Please help yourself to food
and drinks
Please let us know if the room
temperature is too hot or cold
Bathrooms are located past
the reception desk on the right
Please turn OFF your cell
phones
Please complete and return
surveys at the end of the
seminar
2
Contract Trouble Spots
Presented By:
Stefanie R. McNamara, Esq.
Indemnification
• Contractual Risk Allocation
• Scope – typically acceptable
– Breach of Agreement
– Misrepresentation
– Fault – negligence or willful misconduct
• Survival
• Limits on Liability
– Caps and deductibles
• Mutual or Unilateral
4
Warranty
• Scope – What is the warranty?
– Narrow - Meets specs
– Broad - Fit for purpose intended
• Time Frame
• Standards
– Services
– Products/Goods
• Remedy
5
Ownership Of Intellectual
Property
• What do you own?
– Pre-existing IP
– Newly developed IP
• What do they own?
• Joint ownership?
• Don’t just give it away!
6
Assignment
• Have a third party perform the contract
• Do you need the ability to assign the
contract?
• Are you willing to grant the other party
the right to assign the contract?
• Any issues with assignment to a
competitor?
7
Term And Termination
• Automatic or Evergreen renewal?
• Right to terminate without cause or for
convenience
• Other rights to terminate needed?
– Force Majeure Event
– Increase in price of materials
– Breach
8
Restrictions
•
•
•
•
Necessary?
Confidentiality
Non-Solicitation
Non-Compete
9
When Commercial Tenants
Should Call Their Lawyer
Presented By:
Rikki L. Field, Esq.
Preliminary Comments
• Rights and obligations determined
primarily by contract
• Most statutory protections available to
residential tenants not applicable to
commercial tenants, e.g. Anti-Eviction
Laws and Security Deposit Rights
11
Space Is Too Big Or Small
• Assignment (transfer of entire interest in
Lease for the balance of lease term)
• Sublease (lease of a portion of leased
premises for all or part of remaining
lease term)
– Tenant becomes sublandlord to subtenant
12
Landlord’s Consent
• Check your lease
• Typically, landlord’s consent is required
in order to assign lease or sublease
leased premises
• Some leases provided “Landlord’s
consent shall not be unreasonably
withheld”
13
What Is “Reasonable”?
• Landlord may only consider matters that
are related to ownership or operation of
the particular property
– Financial solvency of proposed subtenant
– Nature and suitability of proposed
subtenant’s business for premises and
area
– Subtenant’s guarantee
14
What Is “Unreasonable”?
• Matters that are not related to
ownership or operation of the particular
property
– Proposed subtenant is a tenant in another
building owned by Landlord
– Desiring higher rents
15
Other Provisions
• Some leases give Landlord right to
recapture
• Some leases give Landlord right to all or
part of any increase in rent
• Usually, tenant remains liable after
assignment and/or sublease
16
Landlord Is Refinancing Or
Selling Property
• Refinance/Sale of Property
– Lender or Buyer may require Tenant
Estoppel Letter
– Lender may require confirmation that
Lease be subordinate to mortgage
– Lender may require Landlord to
conditionally assign rents
17
Tenant Estoppel Certificate
• Most leases require Tenant to provide
certified statement regarding lease
within 10 days of Landlord’s request
– Both a Lender and a Buyer will want
Tenant to verify information regarding the
lease terms and Landlord’s/Seller’s
compliance with lease obligations
18
Tenant Estoppel Certificate
• Tenant should:
– Read Estoppel Certificate carefully
– Complete blank sections
– Cross-out or change as needed
• Estoppel Certificate is binding on Tenant
and can prevent Tenant from raising
issue later if not noted here
19
Subordination, NonDisturbance And Attornment
• Lender may require that all leases be
subordinate to lien of mortgage
• Lease may already provide that it is
subordinate to all present and future
mortgages or require that Tenant
subordinate Lease upon demand
20
Subordination And Attornment
• Subordination
– Lease is subordinate to Mortgage and may
be terminated through foreclosure
• Attornment
– If Lease is not terminated through
foreclosure, tenant shall recognize new
owner as landlord under the lease for
remaining term
21
Non-Disturbance
• Lease may provide that Tenant’s
subordination is subject to Lender’s
agreement “not to disturb”
• Non-Disturbance agreement – So long
as Tenant is not in default, Lender
agrees not to terminate lease; lease
continues in accordance with its terms
22
Assignment Of Rents
• Rents as Collateral for Loan
– In addition to a mortgage, Landlord may
have pledged rents as collateral for Loan
– If Landlord defaults, Lender may serve
notice on tenant to pay rents to Lender
– Assignment of Leases should contain
authorization to Tenant to pay rents to
Lender without liability
23
Defaults
• Holding Over
– At end of lease term, if Tenant doesn’t
vacate and Landlord accepts, lease by law
converts to a month-to-month tenancy
– If Tenant doesn’t vacate after notice from
Landlord, Tenant liable for double rent
(unless Lease provides otherwise)
24
Defaults
• Landlord’s Lien
– Landlord has a statutory lien on Tenant’s
equipment and other personality for unpaid
rent
– Landlord’s lien has priority for up to amount
equal to 6 months’ rent
25
Damages
• Duty to Mitigate
– Commercial landlord must make
reasonable efforts to mitigate damages
after a tenant breaches lease
– Reasonable efforts include listing with a
broker and advertising space
26
Damages
• Measure of Damages
– Even if a landlord acts unreasonably in
failing to mitigate damages, landlord may
still recover difference between lease rent
rate and the fair market rental value at time
of default in a declining market
27
Conclusion
• Lease is a contract
– In the first instance, check your lease
• Consult with an attorney
– There may be laws that override your lease
• The best time to consult with an
attorney, however, is before you sign
your lease
28
Tips On Workplace Investigations
Presented By:
Annmarie Simeone, Esq.
Employer’s Duties
• Employer has a duty to investigate all
complaints of harassment and take
prompt remedial action reasonably
calculated to end that harassment
30
The Investigation Is Important
For Several Reasons:
•
•
•
•
Demonstrates company’s adherence to,
and enforcement of, its anti-harassment
policies
Potentially minimizes legal liability
When well done, it can prevent litigation
If litigation cannot be avoided, the
investigation may provide a defense to
claims
31
Consideration #1
Who Should Investigate?
To maximize the chance of an effective investigation, the
designated individual should be:
•
•
•
•
•
•
An objective fact-finder
Trained and knowledgeable regarding harassment
law
Trained in investigative techniques
Familiar with company policies, practices, and
structure
Outside the involved parties’ line of management.
Credible to employees
32
Consideration #2
Confidentiality
•
•
•
Employers cannot promise absolute
confidentiality
Nothing can be “off-the-record” or “in
confidence only”
Instead, pledge to limit discussion only to
those individuals who must be contacted in
order to investigate and resolve the
situation
33
Consideration #3
No Retaliation
• Employer can and should make
a promise of no retaliation
• Employees complaining of harassment are
exercising a legal right; as with any other
legal rights, employees should not be
adversely affected by advising the employer
of alleged harassment (even if it is later
concluded that the allegation was unfounded)
34
Consideration #4
Protect Complainant
•
•
Employer should take steps to insure
complainant is not subjected to harassment
during pendency of investigation
Possible Options:
1. Placing one or more involved parties on PAID
leave of absence
2. Transferring alleged harasser (not complainant,
as this may later be seen as retaliation)
3. Modify reporting structure
35
Consideration #5
Who Should Receive Complaint?
•
•
•
•
Supervisor or other individuals who are or should
be identified in anti-harassment policy
Human Resources
Managers
Anyone who could potentially receive a complaint
should:
1.
2.
Know to bring complaint to the designated individual in
company
Not conduct investigation him/herself or without the
knowledge of upper management
36
Consideration #6
Planning The Investigation
A.
Preliminary Issues
1.
Act promptly
i.
ii.
2.
Use 2 investigators if possible
i.
ii.
3.
Insure objectivity
Facilitates investigation
Create confidential file
i.
ii.
iii.
4.
24 hour goal
Within a few days if time is needed to identify investigator
May still be discoverable
Segregate key documents
Segregate privileged information
Conduct interviews privately
37
Planning The Investigation
(cont’d)
B. Gather the Facts
1. Collect and review relevant documents
i. Complaint
ii. Notes of interviews
iii. Harassment policies
2. Interview the victim
3. Interview alleged harasser
4. Interview witnesses
38
Planning The Investigation
(cont’d)
C. Evaluate the Facts and Make a
Decision
1. View facts from reasonable person’s
perspective
2. Distinguish between “unwelcome” and
“voluntary” conduct
3. Draw up a thorough and even-handed
report
39
Post-Investigation Steps
A. Report results of the investigation to the
complainant
B. Take appropriate corrective action.
Depending on severity of conduct, option
include:
1.
2.
3.
4.
Written warning
Mandatory training
Suspensions
Termination
40
When To Call Your Lawyer:
A Seminar for Business Owners & Executives
10 Minute Break
Protecting Your
Intellectual Property
Presented By:
Andrea S. Glaser, Esq.
Intellectual Property Overview
• “Intellectual Property” broadly refers to
creations of the human mind
• Intellectual property rights give creators
property rights over their creations
• Patents
– Inventions – a product or process that provides a
new way to do something or offers a new technical
solution to a problem
• Trademark versus Copyright
43
Trademark
• Basics
• Trademark search
• Applying for a trademark – www.uspto.gov
– Office Actions
– Oppositions
– Consent agreements
44
Trademark (cont’d)
• International registration
• Fees
• Common law rights
45
Copyright
• Basics
• Applying for a copyright –
www.copyright.gov
• Fees
46
Enforcement
• Consequences of non-enforcement
• Demand letters – sending them and
responding to them
• Lawsuit for trademark or copyright
infringement
47
Infringement
• Trademark Infringement
– Standard of proof
– Damages
•
•
•
•
Injunctions
Monetary relief
Treble damages
Attorneys’ fees and costs
• Copyright Infringement
– Standard of proof
– Damages
•
•
•
•
Actual damages and profits
Statutory damages – up to $150,000 per act of infringement!
Possible criminal charges
Attorneys’ fees and costs
48
Other issues
• Domain names
– Domain Name Dispute Resolution
• Cybersquatting
• Licensing
49
E-Discovery
What Does It Mean To You?
Presented By:
Margaret Raymond-Flood, Esq.
Where Do You Find Electronically
Stored Information (ESI)?
•
•
•
•
•
•
•
Laptops/Desktops
Servers
Phone Systems (VoIP)
Printers & Copiers
PDA’s/Cell Phones
CD’s/DVD’s
USB Thumb Drives
51
What Other Devices Contain
ESI?
52
What does it mean to you?
• Documentary and other evidence has
been lost before, but the presence of
electronically stored information (“ESI”)
heightens the risks:
– Greater volume of evidence to manage
– Need to deal with inadvertent and planned
destruction
– New formats and storage locations
53
The Corporate Enterprise
Network
54
Early Cases
• Zubulake v. UBS Warburg
– Adverse inference instruction for failure to preserve
electronic evidence contributes to $29.3 million initial jury
award
• Coleman Holdings, Inc. v. Morgan Stanley
Co.
– Adverse inference instruction for failure to preserve and
produce electronic evidence leads to $2.58 billion damage
award (reversed)
• U.S. v. Philip Morris USA Inc.
– $2.75 million sanction for spoliation of electronic documents
55
New Jersey State And Federal Court
Rules Were Recently Amended
• To expressly include ESI stored in any
medium
• To permit the requesting party to
designate the form in which ESI is to be
produced
56
What Does It Mean To You?
• Preservation obligation attaches once
“triggers” surface:
– Statutory – Sarbanes, HIPAA, SEC, IRS,
NJ Public Utility Act, etc.
– Notice of a lawsuit
– Litigation that is “reasonably anticipated”
• Attorney and client must preserve ESI
57
What Does It Mean To You?
• Assess and understand company’s
information management
• Meta data is potentially discoverable; sound
recordings are also to be considered as
potentially discoverable
• Attorney and client must work to identify:
– Key custodians
– Relevant ESI on the client’s system
– Locations of data storage devices
58
What Does It Mean To You?
• Notify employees of obligations to preserve
ESI
• Consider offices in other geographic locations
• Formulate a cost-effective strategy for
reviewing and managing ESI
• Suspend automated document destruction
policies, and place “hold” on key ESI
59
What Does It Mean To You?
• Issue appropriate litigation “holds”
• Litigation “holds” must be:
–
–
–
–
Communicated in writing
Issued by someone with authority
Tailored to identify purpose of the hold
Specific in detailing which data should
be maintained and why
– Periodically confirmed
60
What Can You Do To Prepare?
•
•
•
•
•
•
•
•
Discuss ESI retention plan and protocol
BE PROACTIVE! DON’T WAIT FOR A CRISIS!
Discuss your data systems and preservation issues
Consider hiring outside vendors to assist in
facilitating production of or access to ESI
Implement procedures to ensure compliance
Discuss the “reasonable accessibility” of ESI
Must make these efforts a “high priority”
Assemble team of corporate representatives
61
Safe Harbor
•
Court rules provide that generally no sanctions may
be imposed if information that had been electronically
stored was lost as the result of routine and good-faith
operation of the electronic information system
– “Routine” defined as “the ways in which such systems are
generally designed, programmed, and implemented to meet
the party’s technical and business needs”
– “Good-faith” identified as steps taken to “comply with a court
order in the case or party agreement requiring preservation
of specific [ESI]”
62
What Does This Mean To You?
• Creates duty to help ensure that relevant data
is not inadvertently destroyed
• Good-faith steps to preserve may require
suspension of document destruction systems
• Offers limited “safe harbor” protection against
sanctions
• Sanctions: Monetary, bar evidence, adverse
inference, dismissal of claim/defenses
63
What Does This Mean To You?
• Inventory, categorize, and catalog data
storage locations and document types
• Develop document destruction schedules
based on business need
• Damage control: immediately notify attorney
of improper destruction; DON’T WAIT TO BE
ASKED! BE PROACTIVE!
64
Call Your Attorney To
Develop “Best Practices”
• Define policies with unanimous employee
adoption
• Categorize information, and file it according
to the corporate retention policy
• Dispose of data when it reaches the end of
its retention policy
• Avoid policies that do not align with reality
65
It Is What It Is: Tax For 2008
Presented By:
Melinda Fellner Bramwit, Esq.
So What Is It?
•
•
•
•
Current tax climate
Views of new president
Stock market
Capital gains vs. ordinary income
67
It Is . . . A Planning Opportunity
• S Corporations
• Do you have built in gains?
– Take advantage of “Taxable Income
Limitation”
68
It Is . . . A Planning Opportunity
• S Corporations
• Do you have passive income issues?
– Dividend
– Election to distribute before AAA
69
It Is . . . A Planning Opportunity
• C Corporation
– Closely held - pay out a dividend
– Thinking of selling?
70
It Is . . . A Planning Opportunity
• Lower market = lower values
• Consider getting an appraisal for a
family business
– Gifting
71
It Is . . . A Benefit Through 2008
• Through 2008
– Section 179 benefit
– Section 168 “bonus depreciation”
72
It Is . . . A Tax Credit Or Deduction
You May Not Know About
• Everyone likes a credit or a deduction
– Comparison
• Domestic Production Activities
Deduction
• Research and Development Credit
73
It Is . . . A Tax Credit Or
Deduction You May Not Know
About
• Business Incentives
– Disabled Access Credit
– Work Opportunity Credit
– General Business Credit
74
Questions &
Answers
Thank you for coming!