November 29, 2011 in Business, Legal, Legal Articles by jferris

Los Angeles Business Attorney Emphasizes the Importance of Private Placement Memorandums

When a company is looking to raise funds without an initial public offering, a private placement memorandum (PPM) is one of the best ways to raise capital. A company must have the consent of the Securities Exchange Commission (SEC) before this can be done, and will need an information memorandum along with the PPM. Because of the complexity of SEC rules and documentation, it is highly advised to seek a knowledgeable business attorney to help throughout this process.

PPMs are a great sales tool to attract investors, which are also known as subscribers. This document shows that the company directors and officers are serious about their company, have the professionalism to succeed in their particular industry, and are committed to having good products, no matter what sector they are in. The content should be focused on information that allows the investor to make an informed investment decision. Some of the information is required by law, and this is where the business attorney provides valuable insight.

The length of a PPM will be greatly influenced by the caliber of angel investors sought and the amount of capital needed. All PPMs should be very polished, professional documents. The company must disclose all material and relevant facts. No half truths, omissions, or false statements of facts are tolerated. Otherwise, making material misstatements can lead to a securities fraud claim that can affect the company as well as the company’s directors and officers. The SEC can also levy civil and criminal penalties for securities fraud. Thus, taking the time to create and thoroughly review the PPM with a business lawyer’s guidance is well worth the effort and money.

A PPM has numerous technical sections. This includes:
• Summary of Offering Terms: Usually laid out via a term sheet
• Issuer Description: Describes the company and its structure, a short overview, a cap table and context of the offering
• Business plan: Contains information on the company’s position in the market, its unique value proposition and products, as well as the sales and marketing plan, financials, intended use of proceeds, and management
• Risk factors: Details potential and actual risks that could affect the investor; cautionary language should also be included about investment risks in general with unregistered securities; and conflicts of interest should also be described
• Supplemental information: Any additional information should be included that is critical for the investor to make an informed decision
• Subscription procedures: Describes the steps for investors to participate in the offering

Having a trusted business attorney to create, review, and file the PPM allows a business to focus on its daily operations and long-term plan. Business owners can have peace of mind that all the paperwork is done in a thorough way to minimize issues and attract key investors.

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

November 29, 2011 in Business, Legal, Legal Articles by jferris

Texas Supreme Court Ruling Narrows Scope of Anti-Retaliation Law

The Supreme Court of Texas this year decided that some state employees cannot file retaliation claims if they were fired after filing for workers’ compensation.

Employees of Texas political subdivisions, or government groups that are confined by a specific geographic area like a water district, are exempt from retaliation laws set up to protect workers from being fired after filing a claim or complaint against the employer.

The court ruled in Travis Central Appraisal District v. Diane Lee Norman that Texas state law clearly leaves these political subdivisions exempt from the anti-retaliation law in the case of workers’ compensation.

In 2005, the Texas Legislature revised the Workers’ Compensation Act and broadly gave sovereign immunity to political subdivisions, according to the Insurance Journal. On this change, the judge in the case, Justice David Medina, reversed the court of appeals ruling. Because the reversal was based only on a law that focused on workers’ compensation cases, political subdivisions still are vulnerable to retaliation claims that stemmed from other filings like whistleblower suits.

The case helped to draw a sharper line between sovereign immunity and governmental immunity. Sovereign immunity protects the state and its boards and agencies, while governmental immunity protects specific political subdivisions like cities, counties and school districts.

The Travis Central Appraisal District originally held that the worker could not file a retaliation lawsuit until she had exhausted her other options administratively under TCAD regulations. The trial court rejected TCAD’s plea in part because Norman was a probationary employee to whom the grievance process may have been unavailable.

The appeals court heard the same argument from TCAD, but also considered the district’s claim that the political subdivision had immunity from her claim despite previous rulings to the contrary (City of LaPorte v. Barfield). The appeals court also rejected TCAD’s claim.

The Texas Supreme Court found that it was legislative changes to the state’s workers’ compensation act that gave immunity to the TCAD. The state’s Political Subdivisions Law requires that such entities pay workers’ compensation benefits to employees. An anti-retaliation rule was eventually adopted as part of the law.

Texas has an Anti-Retaliation Law that would have helped Norman, but Medina points out that the state has “tinkered” with the Political Subdivisions Law several times since the Barfield case, which the trial and appeals court use to decide Norman’s suit.

The Political Subdivisions Law changes include a broad statement that prevents sovereign immunity from being waived.

The Supreme Court dismissed the case and suggested that the state legislature revise the Political Subdivisions Law to be more specific in its wording.

A qualified employment attorney can help a company react to workers’ compensation claims within the law.
Seth Wilburn writes for the Gomez Law Group, a Dallas employment lawyer and Dallas business lawyer. To learn more, visit Gomezlawyers.com.

November 28, 2011 in Business, Legal, Legal Articles by jferris

Employers Should Proceed With Caution and Consult Legal Counsel When Workers Claim Discrimination

If you are an employer faced with claims from an employee, perhaps the best advice that can be given is that you should promptly consult with legal counsel that has specialized knowledge in the employment area. Just as you have the expertise to run your business, a lawyer with specialized knowledge in the employment area should have the skills to help you navigate the sometimes complex area of employee claims.

There are, however, a number of suggestions that generally apply that could lessen the likelihood of having a discrimination claim made against you or make it easier to defend against such a claim. First, if such a claim has been made, care should be taken to determine whether the alleged harasser or discriminator and the alleged victim should be separated or placed on leave. Appropriate managers should be informed and it should be stressed that retaliation will not be tolerated. If there are upcoming performance reviews or planned business changes, consideration should be given to whether such matters will give an appearance of retaliation.

Of particular importance is when an employee makes a discrimination claim and the employer needs to go over a negative employment review or is aware of an impending wave of layoffs. When an employee has made a discrimination charge, being laid off can be a huge opportunity for that person to claim retaliation. Employers should make sure their practices steer clear of being construed as retaliation.

One of the more important steps an employer can take to lessen the likelihood of being successfully sued for discrimination is to keep good records. Recordkeeping provides concrete evidence of job performance factors that occurred before the employee claimed discrimination. Disciplinary actions and poor performance should be well documented. If they are not, you may be left with a swearing match over the quality of an employee’s performance. Another step that can lessen the likelihood of discrimination claims is to require that all promotions/demotions be approved by a second-line supervisor.

Another means to lessen the likelihood of a discrimination claim is through training. Employers and workers can benefit from training to educate them about the pitfalls of discrimination and how it should be thoroughly avoided in the workplace. From seminars to online modules, employers can encourage such education. Training can help prevent discrimination, negative and false stereotypes, and subconscious bias that can sometimes take over a business’ hiring and promotion practices, as well as performance evaluations and other routine tasks in the workplace.

Employers should contact a skilled discrimination attorney in order to lessen the risk of discrimination and retaliation claims. A knowledgeable attorney can discuss the important steps to take to ensure your business is complying with the law and help educate managers to make wise decisions. A good attorney can be both proactive to lessen the likelihood of a suit and reactive to lessen the impact of a suit.

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

November 22, 2011 in Business, Legal, Legal Articles by jferris

OSHA Strengthens Whistleblower Investigation Manual

Employees who see violations in their workplace but are scared to bring them up because they fear for their jobs now have more broad access to The Occupational Safety and Health Administration’s whistleblower department.

OSHA made clarifications to its Whistleblower Investigation Manual in September that open up avenues of access. Complainants now can file concerns in any language orally, in writing or on OSHA’s website.

A new requirement in the updated manual instructs investigators to make every effort to interview the whistleblower.

In the past 18 months, at least two organizations contacted government officials in writing – including Assistant Secretary of Labor David Michaels and U.S. Department of Health and Human Services Secretary Kathleen Sebelius – complaining that whistleblowers were not interviewed by OSHA investigators in their own case.

The new requirement could fix that issue. The investigator’s supervisor will now have to approve the attempts made to interview the complainant, according to OSHA’s website.

The new manual clarifies investigation protocol including how to conduct and record interviews with witnesses. It also expands guidance on how to deal with uncooperative witnesses. Increased training of investigators is a big part of the revised manual.

In September, OSHA held a whistleblower investigator conference and investigators now will take a two-week training course including webinars on food safety laws and amendments to the Sarbanes Oxley Act.

Some of the more sweeping changes in OSHA’s whistleblower investigation manual are internal. The Office of the Whistleblower Protection Program now will report directly to the Assistant Secretary of the Department of Labor. Previously, the Directorate of Enforcement Programs oversaw OWPP.

“The prospective of this restructure is to increase consistency, timely investigations, and better customer service,” according to the website.

OSHA recently hired about 25 new investigators. The administration has a new line item in the FY 2012 budget for the whistleblower program with a requested $6 million increase to fund 45 more investigators.

OSHA plans to significantly increase its visibility in the areas where the group gets the most complaints to provide education and compliance help, according to the website. To make sure complaints are handled in a reasonable timeframe, OSHA also modified and strengthened the audit program. The data collection program also was modified. The administration knocked out a backlog of 150 cases, according to its website. A new directive pushes for consistent and quick appeals too.

A qualified business law and employment attorney can help your company draft policies that will comply with OSHA regulations. Should an internal matter arise, a qualified lawyer can advise on how to conduct investigations and how to handle employees so that a company adheres to the laws.

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