September 14, 2010 in Business, Business, Legal Articles by jferris

California Prenups are Smart Business Moves

While no one wants to think of a marriage as a business, it often is just that. The partners work together to run it by agreement.

One of the more controversial areas of California divorce law centers on whether or not to have a prenuptial agreement. Many feel it’s not exactly the epitome of being amorous. And frankly, it really isn’t all that romantic, but it’s necessary in case something happens later. Not being protected can be a major disaster to the spouse who happens to have less money and/or assets than the other. It’s not that a prenup is intentionally a power play involving finances, but some cases turn out that way when the marriage comes apart. California is a community property state, so everything is split 50/50 unless a prenup says otherwise.

Prenuptials are not just for the wealthy, although you’d wonder about that reading the newspapers and watching television. Mostly, it seems, that only celebrities opt to have a prenup. In reality, they are for everyone and anyone who wants one. There’s a very common myth floating around that a couple doesn’t need to go this route if they don’t have much money between them. This is not the case.

Virtually anything and everything can be the focus of a prenuptial agreement. Getting around the “not so romantic” stigma associated with them often works if the couple just has a very frank and wide-ranging discussion about how each of them handles finances before they get married. Finding out later that the husband spends thousands on sports equipment, while the wife thinks the money should be set aside for the children’s education, is not exactly conducive to a happy, well-balanced marriage. The bottom line is if you don’t want surprises later, get things out in the open now, because no one knows what will happen.

What if one of the spouses comes into more money in the future, as a result of their business or a talent they have? If you know how to handle the division of community property in advance of any possible divorce, you’ll be well ahead of the game and won’t necessarily have to face the bitter acrimony that sometimes accompanies divorces without a prenup in place. If you don’t know how to go about setting that kind of agreement up, contact an experienced attorney.

This brings up another very common belief, that prenuptials really only protect the partner with the most money and take it away from the partner that doesn’t have much. The reality is that prenuptial agreements are designed to protect both parties.

It should also be noted that just about anything can be written into a prenup, but that doesn’t mean that everything and the kitchen sink must be included in the agreement. These agreements can either be incredibly complex or strikingly simple. It’s up to the parties to decide what they want.

By the way, living together without the benefit of a marriage license is not the way to get around not having a prenuptial. Some couples think if they just live together, the live-in has no claim to the other’s property or income. Wrong. The person making the money and with the assets could be taking a huge risk just living together. It’s called palimony. If you want to protect what you’ve got, get a prenup drafted and signed.

Anthony Spotora is a Los Angeles family lawyer and Los Angeles business attorney. To learn more, visit Spotoralaw.com.

September 12, 2010 in Business, Legal Articles by jferris

The key to avoiding employment disputes is doing it right the first time

In order to avoid disputes at work, it’s best to have proper employment agreements, procedures and policies in place.

Those who have been in business for a fair length of time appreciate the old saying that if something is worth doing, it should be done right to avoid problems later. There is no truer saying in business than this one. It’s typically the best approach to any products and services provided, but also perfect for the staff and management who will have procedures and policies in place to support them. Any time proper procedures and policies are in place, chances are there are far fewer employment disputes.

“Running a business by the seat of your pants isn’t the best way to be successful, so it’s prudent to have relevant employment agreements, procedures and policies in place to act as guidelines. There also needs to be processes in place to follow when managing others. You may very well be the company expert of your products or services, but chances are you aren’t an expert on employment law, etc. For that kind of expertise, you need to consult with a seasoned Dallas business lawyer,” said Ty Gomez, a Dallas employment lawyer and Dallas business lawyer.

It is vital for any business to keep current on what is happening with employment law in the state and to that end, consulting with a lawyer with experience in this area only makes good sense – good financial sense – because if things are not done properly, legally and correctly, employment disputes may cost the company a lot of money.

“Did you know that as an employer, you are mandated to have a written agreement with all your workers? Yes, you can find employment agreements online, but they’re completely useless. Generally speaking, they don’t fit your situation and if you try to alter it, chances are you’ll get it wrong, which will mean legal problems later,” Gomez said. Typically, the agreement needs to outline the rights and obligations of the parties and the nature of the working relationship, hours of work and rate of pay.

There are a number of other things that need to be in an agreement, and missing any one of them can cause a whole world of hurt later, particularly if this is a management-level or higher position. Things are different for other employees in Texas, and one of the first questions to ask an experienced Dallas business and employment lawyer is: “How do Texas employment laws affect me?” The answer may vary depending on the position you currently hold or are about to assume.

Gomez Law Group is a Dallas employment lawyer and Dallas business lawyer. To learn more, visit http://www.gomezlawyers.com.

September 12, 2010 in Business, Legal Articles by jferris

Non-compete agreements may be enforceable

There is a great legal debate about whether or not non-compete agreements are enforceable. The answer is: sometimes they are.

“If you’re offered an executive level job and salary and other issues are under negotiation, get an experienced Dallas business lawyer to assist you,” said Ty Gomez, who writes for the Dallas based Gomez Law Group. “Don’t sign anything until I get a look at it, because if the documents contain things that may be contentious later, it’s best to iron those issues out before you start work.”

“Let’s say you have your offer in hand and have the usual period of time to think it over. This is the perfect moment to bring it to our office and go over the documents. If you are being offered a VP position, there are many things to consider, such as performance clauses, golden parachute options and non-compete clauses. All of this should be checked with a fine-toothed comb,” Gomez said.

One of the first flags that should go up when anyone is offered a VP position (or higher) is if they are asked to sign anything other than a laundry list that lays out the compensation for the position. Any documents that are handed over, with the expectation that the individual will “just sign them,” need to be vetted by a seasoned Dallas business lawyer. “It’s better to have a legal review prior to signing something that may come back to haunt you later. This is a little like closing the barn door after the horse has left, so don’t sign anything until you know what it is and what it means,” Gomez said.

If a document a new employee receives looks and sounds like an attorney wrote it, chances are they did. “If that’s the case, then it’s best to run this document by your own lawyer. While the document may tell you what is included in your position, it may not indicate what isn’t included, and that’s equally as important,” Gomez said. For example, the papers may not mention dispute resolution or commission payments.

The most critical parts of documents that involve compensation provisions are the ones referring to non-solicitation, non-disclosure and non-compete. “I have spoken to some job candidates that flat out said non-compete agreement are not enforceable. This is not the case. Anything that is a ‘non-clause’ can be enforceable and even if it can’t be enforced, it would be very expensive to fight. These are things we discuss if you happen to have any or all of the big three non-clauses in your offer,” Gomez said.

There are all kinds of questions that need to be answered when dealing with non-compete clauses. For instance, is what that company is asking their prospective employee to give up worth it? Can that individual live with the provisions? What is gained by signing it? What does the person get in return for giving something up? These are things that need to be discussed with a skilled Dallas business lawyer.

Gomez Law Group is a Dallas employment lawyer and Dallas business lawyer. To learn more, visit http://www.gomezlawyers.com.

September 12, 2010 in Business, Legal Articles by jferris

E-mail retention is an issue in many companies

The Sarbanes-Oxley Act passed four years ago. Many think the law is working, but aren’t sure how it affects e-mails.

It was President George W. Bush that brought the Sarbanes-Oxley Act into being, with the intention to boost accounting oversight and corporate responsibility. The main thrust of the act was to increase accounting and auditor regulations, augment disclosure requirements, generate new federal laws and jack up the penalties under existing federal law. In other words, the whole idea was to make larger companies get their bookkeeping in order.

One of the most important facets of this act centers on the details relating to data security, protection and retention. Data these days refers to many things, but it also includes e-mail. The question quickly grew to ask how the Sarbanes-Oxley Act affects e-mail retention policies in a workplace. Here is some interesting information that not many people are aware of relating to business documents in today’s electronic workplace. If you aren’t clear on any of the regulations in this act, invest time with a Dallas business lawyer to get answers.

Just about 93 percent of all material (business documents) is created electronically. Since that’s the case, many companies are now facing the looming question of what on earth do they do about e-mail retention questions. E-mail and its retention has now become a top priority issue that can’t be ignored. The bottom line is that companies need to develop off-site storage. For example, an online service that stores encrypted data and protects it.

In referring to the Sarbanes-Oxley Act, you’ll find it mentions three stipulations dealing with e-documents, which includes e-mails. They deal with destruction/alteration, obstruction of justice and mandatory document retention. Very simply, when dealing with destruction/alteration, the act says that those who knowingly alter, conceal, falsify, mutilate or destroy any document (paper/electronic) because they want to obstruct any proceedings involving a federal agency may face up to 20 years in jail, be fined or both.

If a company has an e-mail retention policy, then it must also include a security plan. Along those same lines, the company must allow only certain people clearance to access archived e-mails, generate a report with that individual’s name when he or she accesses the secure information and write down any changes to existing documents. The act goes even further and mandates that a company keep records, such as e-mails, for up to five years. The e-mails are to be classified by date, month and year to allow auditors to quickly access pertinent information.

These are provisions that are crucial to the operation of your company, and in order to ensure you are in compliance with the Sarbanes-Oxley Act, you will want to discuss your various issues and questions with an experienced Dallas business lawyer.

Ty Gomez writes for the Gomez Law Group, a Dallas employment lawyer and Dallas business lawyer. To learn more, visit Gomezlawyers.com.

September 12, 2010 in Business, Legal Articles by jferris

Whistleblower actions have been around forever

Whistleblower lawsuits have been around for centuries. Their impact is still significant.

Another term for a whistleblower lawsuit is “qui tam,” and this form of legal action has actually been around for centuries. That certainly says something about mankind’s avarice and the drive to get money from the government in a fraudulent manner. Actually, the lawsuits of centuries ago were a way for citizens to shield their government from fraud. Over the passing years, things have obviously evolved and in America, the False Claims Act came into being to nip abuse in the bud that was being committed by defense contractors, health care providers and financial institutions.

Unfortunately, fraud is on the rise, given the sorry state of the economy. While this isn’t good news, it has made the federal government sit up and take notice of what is going on, finally realizing that they are and have been the victim of some significant fraudulent schemes that have netted others millions of dollars – ultimately at the taxpayer’s expense.

In self defense and also to stem the flood of dollars illegally making its way into the pockets of others, the government took action to protect tax dollars and to take control of the economy; trying to regulate it so it was not all over the map. Yes, there is such a thing as a free market, but those who were taking that phrase literally had to be stopped. This is where rules and regulatory powers must be brought into effect to keep the market a place to trade fairly and to keep it legitimate.

In the course of tracking how much money they had lost over the years, and the figures showed a staggering amount in the millions, the federal government brought in the Fraud Enforcement and Recovery Act (2009). It wasn’t much of a surprise that it passed with virtually no resistance or nay-saying. Shortly after that, the Fraud Enforcement and Recovery Act (FERA) also came into existence. The idea behind FERA was that, with enough pointed and clearly defined legal definitions (and money to support this), it could overhaul or reform fraud.

Under this legislation, budgets were boosted and made a great deal larger for those departments responsible for finding and prosecuting fraud. Sort of like putting their money where their mouth is; by decrying fraud and actively seeking to stop it, the only way the government could accomplish this was to increase the budget for enforcement departments and personnel. The departments that search for and act on fraud cases are the Securities and Exchange Commission, the Department of Housing and Urban Development and the Department of Justice.

Where the legal redefinition came into play was with the False Claims Act. It is noted to have a long history with the courts, but many of the definitions in it were out of sync with what Congress perceived was the intent of the law. This made it far less complex for whistleblowers to file suits and meant less of a need for as much evidence to prove a defendant was guilty of defrauding the federal government.

If you happen to be in a situation where you have knowledge and/or evidence of a company knowingly defrauding the federal government, speak to an experienced qui tam lawyer and find out how the law affects you today.

Ty Gomez writes for the Gomez Law Group, a Dallas employment lawyer and Dallas business lawyer. To learn more, visit Gomezlawyers.com.

September 12, 2010 in Business, Legal Articles by jferris

Getting naked in Times Square just became the focus of a legal battle

hings couldn’t possibly get any stranger than a naked cowboy suing for trademark infringement.

“This is quite the case,” said David Alden Erikson, a Los Angeles business litigation attorney. “A naked cowboy, who sings and plays guitar for a living in Times Square, is suing what he considers to be a cheap imitation of himself – a naked cowgirl.” While this isn’t as big a patent and trademark case as NTP v. Apple-Google, it is important, as the Naked Cowgirl is accused of devaluing a well recognized brand and icon; one that has been in Times Square every day for the last 10 years.

The Naked Cowboy, better known when he has his clothes on as Robert Burck, insists the Naked Cowgirl should be paying him a franchise fee for wearing “his” proprietary grab – albeit in different anatomical locations. What is his proprietary clothing? It turns out to be a uniform of sorts, although only vaguely, as a pair of underwear is really just a pair of underwear. Or is it? Some attorney saw it as more than just undies, and now has Burck as his client.

The decision that needs to be made in this case will deal with whether or not Robert Burck owns the trademark to “naked.” And furthermore, does he also own the trademark to “cowboy?” The cowboy makes his living standing in Times Square, naked but for a pair of undies and his guitar and hat, singing for money. Does that mean he owns trademark to street guitar playing? What about this case might say there is something here that is devilishly creative and unusual and different that distinguishes his trademark?

“At the risk of sounding slightly amazed, which I have to admit I am,” Erikson said, smiling, “this case will offer the courts a whole new challenge in trying to deal with those who want to trademark any activity they do in public while in their underwear.”

Needless to say, the outcome of this case, which will no doubt achieve infamy of some sort or another, will be very interesting. Will it make it to court? Only time will tell, but try to remember that the issue of trademark infringement is a serious one and there are laws in place to prevent it from happening. Whether or not there are laws in place to deal with the Naked Cowboy’s latest endeavor – getting married by the Reverend Naked Cowboy in Times Square for a starting price of $499 – well, that’s another story.

To learn more about David Alden Erikson, Attorney at Law, visit http://www.daviderikson.com.

September 12, 2010 in Business, Legal Articles by jferris

Protecting consumers by preventing trademark dilution is important

Trademarks differentiate one company from another. As such, it’s important they are not diluted.

There are quite a number of different forms of intellectual property protected by law. “You may immediately recognize this form – the trademark,” said David Alden Erikson, a Los Angeles business litigation attorney. “A trademark may be a logo, phrase or even a word. Overall, the reason for using a trademark is to that the consumer is able to tell the difference between one company or entity and another. While in theory that works just fine, in actual practice, there are times when a trademark becomes diluted, meaning the distinction between one trademark and another is not clear and distinct.”

Trademarks are registered because they are intended to represent or be the “face” of an entity or a company. Think Nike and their “swoosh.” It’s vital that their trademark be different from all other trademarks. If somebody creates a similar trademark, it could be a rip-off, and could cause trademark dilution. “Dilution of a trademark happens in many different ways, like tarnishing, blurring and genericization. There are other ways to do this, but you get the general idea,” Erikson said. “Most jurisdictions these days, and that includes the U.S., have laws to prevent this kind of thing from happening. Of course, it does anyway, but there are guidelines and rules established to protect trademarks.”

The law, as it relates to diluting a trademark, was designed to address two issues. The first one deals with consumer protection. What that boils down to is that when a customer buys a trademarked item, they do so because they identify with the trademark. When they buy by trademark, say a pair of Nikes, the consumer is also identifying with the company that owns the mark or the business the mark represents.

“What’s important to note here is that the trademark isn’t just some form of representation, it is closely tied with and into corporate responsibility when it comes to quality. For example, Louis Vuitton luggage has their trademark on all products. It stands for attention to detail, classy presentation, quiet elegance and clean and simple design,” Erikson said.

“If you have done any shopping at stores that have a reputation for selling knock-offs, you’ve likely seen and perhaps even purchased a Louis Vuitton knockoff purse. If you take the time to examine it carefully, you’d notice things like the traditional Louis Vuitton trademark is slightly blurred, that the stitching isn’t quite as detailed and precise or that the zipper pull isn’t precisely the same kind or quality as the original. This is done by other companies who want to confuse consumers by getting them to think they’re getting an original at a cheap price,” Erikson said.

For those original designers and manufacturers who feel they have been ripped off by a company specializing in knockoffs, it’s time to talk to a Los Angeles business litigation attorney about defending the trademark. After all, there are laws in place to protect original creations.

To learn more about David Alden Erikson, Attorney at Law, visit http://www.daviderikson.com.

September 12, 2010 in Business, Legal Articles by jferris

Hot off the line and hot on the heels of trademark infringement

It had to happen; trademark violation in the donut-making industry. Franchisee loses right to make Krispy Kreme donuts.

Krispy Kreme (KK) went to court to stop a franchisee from operating their New York Penn Station booth and another location. This case took place in a federal court and resulted in a preliminary injunction being granted to KK because the franchisee (Satellite Donuts) was lagging behind on their financial obligations, and were in contravention of the Lanham Act.

Evidently, Satellite Donuts was infringing on KK’s trademarks, continuing to run their business without authorization and “diluting” KK’s trademarks by making lousy donuts. Satellite had actually filed for Chapter 11 bankruptcy, which meant they had an automatic stay. However, the bankruptcy court altered the stay to allow KK to request their injunction in federal court.

To learn more about David Alden Erikson, Attorney at Law, visit Daviderikson.com. Mr. Erikson specializes in Los Angeles fashion law, internet law, business litigation, trademark and copyright law.

This sad saga began in 2008, when Satellite signed a franchise agreement for Penn Station and in 2009 also signed an agreement for a location in Baldwin, NY. When 2010 rolled around, KK sent a demand letter to Satellite pointing out they had failed to pay $310,046 as their part of the franchise agreement(s). Satellite said they could find another party to invest in their business. KK wasn’t impressed and sent a cease and desist letter along with notification their franchise had been terminated.

KK then sued and got a temporary restraining order that let KK get a quality control person at both locations. At the same time, the court ordered Satellite to smarten up and live up to the quality control standards in the agreements they signed. Satellite felt they had been denied the chance to fix their errors; that KK had inflated the debt and didn’t let them bring in a new investor. The court didn’t agree with that argument, stating KK had proven it would suffer irreparable harm if they didn’t get an injunction.

The key to the decision in this case is the judge’s dictum that said; “When in the licensing context unlawful use and consumer confusion have been demonstrated, a finding of irreparable harm is automatic.”

Cases like this can go either way, and if you are faced with a similar situation, your best bet is to discuss your case with a skilled lawyer who handles trademark and copyright law. It’s an area that many people don’t understand, and consequently wind up walking on the wrong side of the law – either intentionally or unintentionally. Either way, the original owner of the trademark has vested rights and if someone infringes on them, they are well within those rights to sue.

September 12, 2010 in Business, Legal Articles by jferris

Imagine a trademark for pot – the kind you smoke

This may be a stretch of the imagination, but marijuana may get a trademark. Stranger things could happen in the world of trademark law.

This is an interesting story and one that may cause a chuckle or two, but, in the long run, may make its mark on the U.S. as a first. Some enterprising pot growers tried trademark their crop recently and were almost successful. The trademark application was actually for something called Tartukan death weed. Sounds attractive, right? Like someone would want to go right out any buy it and give it a whirl.

This application was almost successful for one major reason – on April 1,2010 (not an auspicious day to do this, given it is April Fool’s Day) the U.S. Patent and Trademark Office started offering a new category for medical marijuana trademarks. The category wasn’t open long, but it was definitely no joke, despite the hilarity the Tartukan trademark application engendered. Said the trademark gurus; “We noticed that since the state law dealing with medical marijuana was introduced, there may be questions, etc. about whether or not trademark applications for this could establish lawful use relating to interstate commerce.”

Interstate commerce? As in taking medical marijuana across state lines? It’s a delicate subject. Nonetheless, despite various reservations and concerns about trade marking medical marijuana and any services related to it, this has not stopped Oakland’s Harborside Health Center from making their company name a trademark and also striving to trademark their logo.

Trademarking a health center is one thing; trademarking a specific brand of pot isn’t a good idea, because brands of pot aren’t reliable enough to trademark. Their quality, origin, reliability and potency, among other things, tends to go up in smoke, and there is no surefire scientific method to confirm a certain patch is a certain strain.

Well, the long and short of this story is that if other scientists can patent genes that alter the food we eat, maybe marijuana growers should chase down that avenue and ask about patenting plant hybrids instead.

To learn more about David Alden Erikson, Attorney at Law, visit Daviderikson.com. Mr. Erikson specializes in Los Angeles fashion law, internet law, business litigation, trademark and copyright law.

September 9, 2010 in Business, Legal Articles by jferris

Selecting the right non-compete lawyer

If you have a non-compete situation in need of a lawyer’s services, your choice of an attorney may have a profound effect on your business or livelihood. You need a lawyer who is familiar with the Texas courts’ opinions on these agreements, as well as the Covenants Not to Compete Act enacted by the Texas legislature.

If a non-compete signing or the aftermath of such a signing is on your horizon, seeking the services of an attorney who is competent in Texas law, experienced in sundry business disputes, and knowledgeable about the knotty particulars of Lone Star State employment law is a given. But how can you be sure that you’ve chosen the right lawyer for a non-compete?

Generally speaking, a non-compete clause or a covenant not to compete is a provision in a contract under which one party (typically an employee or seller of a business) agrees not to pursue a similar profession or trade in competition against another party (usually the employer or buyer of a business). Without a clause like this in place, a former employee or business owner might begin working for a competitor or perhaps worse, initiating a similar business.

Prior to 2006, Texas courts had historically been very reluctant to enforce many non-compete agreements. In that year, however, the Texas Supreme Court overturned years of established law when it decided the case of Sheshunoff v. Johnson. Suddenly, Texas courts were much more likely to enforce non-compete agreements. That trend has continued with cases such as Mann Frankfort Stein v. Fielding. Typically, disputes on enforceability of non-compete agreements center on whether appropriate consideration has been provided and whether the restrictions are reasonable.

If you are considering entering into a non-compete agreement or are involved in a dispute over a non-compete, you would be well advised to hire an attorney who is up-to-date on the latest developments in this fast changing area of the law. The right non-compete lawyer should be able to explain the law, clearly advise you with respect to your options and aggressively handle any litigation if the disagreement cannot be favorably resolved.

Gregory D. Jordan is an Austin business attorney, Austin employment lawyer, and Austin business litigation lawyer. To learn more, visit Theaustintriallawyer.com.