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Cradle to Grave - The Impact of Family on the Business Case Study

Cradle to Grave - The Impact of Family on the Business, Choosing a Business Entity in Today's Business World

Taxes, liability protection, and other considerations have caused the choice of business entity by a new business owner, or an existing owner, to be an issue requiring competent advice from the business owner’s lawyer and accountant. Only after understanding all of the goals and plans of the business owner, both short term and long term, can a business owner’s advisors recommend to him or her the proper entity for their business operations. This outline is intended to raise the issues for a business owner to consider – not to provide answers. Only after a thorough analysis and review can the answers be provided by the business owner’s advisors. Good luck on your selection.

Covenants to Not to Compete and Injunctive Relief

Almost every case involving non-competes and trade secrets deals in some fashion with injunctive relief. In fact, these cases are typically won or lost at the temporary injunction stage. For example, from the employee’s perspective, a former employer seeking injunctive relief will inevitably claim that damages are impossible to calculate in an effort to buttress its claim of irreparable harm—a necessary component of obtaining injunctive relief. If the injunction is denied, however, the former employer is left with the herculean task of quantifying these otherwise “impossible to calculate” damages. Thus, if an employee can successfully rebuff efforts by his or her former employer to either enforce a non-compete covenant or obtain the substantive equivalent through a temporary injunction preventing him from working for a competitor, that employee has essentially gutted his former employer’s ability to get any relief at all. Similarly, if an employer can obtain injunctive relief, an ultimate ruling on the non-compete may be unnecessary given the amount of time it takes to get to trial. Understanding both the substantive and procedural requirements for obtaining a TRO/TI—as well as their practical application—is, therefore, critical in either obtaining or defeating an injunction.

Employment Law Hot Topics

Cradle to Grave - The Impact of Family Law on the Business, What Every Business Attorney Needs To Know About Family Law

This paper will help you advise business owners about the impacts of divorce and family law upon businesses. This is important not only for the business owner who may be facing divorce, but for his business partners as well, who may find themselves and their interests affected by the divorce litigation. With an understanding of how Texas divorce law impacts businesses, business agreements can be drafted to shield the business and its other owners from the impact of one owner’s marriage and divorce.

Data Privacy Issues

Due to the increase in cyber attacks and misappropriation of data from companies of all sizes and across all industries, attorneys, both personally and professionally, face increasing responsibilities to understand and implement strong and robust data protection programs. Attorneys should be aware of the relevant and changing data protection standards, understand how to meet such standards and help clients to do the same, and prepare to react effectively when a data breach occurs.

Corporate Compliance in the 21st Century

Dating back to the Civil War and the passage of the False Claims Act (“FCA”), the federal government has relied―and continues to rely―on whistleblowers to aid in the government’s ability to enforce regulatory laws and protect various government programs. The federal government simply lacks the limitless legal and investigative resources needed to do it entirely on its own. To this end, Congress has passed numerous regulatory statutes containing specific incentives that reward and protect whistleblowers for coming forward, including bounty programs and private causes of action to combat employer retaliation. This paper focuses on giving insight to the in-house counsel about those whistleblower statutes and their key provisions.

7 Deadly Sins of Contract Drafting - Constructive Interpretation and Interpretative Construction

This paper will analyze and discuss 7 topics regarding contract drafting that can impact the effectiveness, predictability and enforceability of an agreement. There are many other topics that deserve comment, so this paper will seek to include references to other resources useful to a practitioner in drafting, interpreting and construing contracts in many different types of transactions.

Fiduciary Duties for Employees in TX - A Moving Concept

Cradle To Grave - The Impact of Family on the Business, Estate Planning Strategies

Cradle to Grave - The Impact of Family on the Business, Development of a Family Business Objectives Statement (AKA Family Business Mission Statement)

Best Practices for Performing and Supervising M&A Due Diligence

The title of this article seems a bit presumptuous given that “best practices” are always subjective and somewhat in the eye of the beholder. Nevertheless, the author, with nearly two decades of buy-side M&A experience, will attempt to impart some nuggets of wisdom and many practical tips for managing the M&A due diligence process. Managing such a process can encompass many steps and can be compressed into a few weeks or stretch out over several months. The process may involve many people from different departments within the acquirer company as well as outsourced expert advisors making contact with many people from different departments within the target company as well as the target company’s outsourced expert advisors. As such, the due diligence process can generate thousands of individual communications and loads of new data. Organization is the key to successfully navigating such a process. Lawyers are uniquely positioned to oversee and manage the process. With our ability to see across multiple domains, focus on the salient issues and manage competing deadlines, lawyers bring an important skillset to the M&A team. This article will attempt to provide lawyers with a roadmap and practical ideas for managing the M&A due diligence efforts of an integrated team.

Crowdfunding from Texas Crowds

The Texas Intrastate Crowdfunding Rules have flexibility that neither the comparable federal statute nor the proposed federal rulemaking have. The Texas rules allow all of the intermediaries operating crowdfunding portals to take compensation. That should encourage the formation of portals and registration with the Texas State Securities Board. In contrast, the definitions and operational limits on both federal Funding Portals and intermediaries in Rule 506(c) offerings exempted under ’34 Act Section 3(h) cannot take compensation. The Texas issuer’s offering exemption provides for a larger ceiling for the investment by each individual investor and has no ceiling on investments by Accredited Investors. In contrast, federal statutory provisions for crowdfunding offerings have ceilings, whether the investors are Accredited Investors or not and all investors must be Accredited Investors in Rule 506(c) offerings made on portals. The Texas rules will likely disqualify fewer issuers than the federal statutory provisions for crowdfunding or the regulatory requirements for Rule 506(c) offerings do. And, the simpler set of disqualifying events or conditions under Texas rules impose a lesser burden in ensuring compliance with the exemption than exists under the federal exemptions.

Choice of Entity Decision Tree Presentation Materials

These are the materials used in the live program presentation.

Choice of Entity Decision Tree

In selecting a form of business entity for operations in Texas the following five business entity forms are available: • Corporation • General Partnership • Limited Partnership • Limited Liability Partnership (“LLP”) • Limited Liability Company (“LLC”) The form of business entity most advantageous in a particular situation depends on the business objectives for which the entity is being organized. In most situations, the choice of entity focus will be on how the entity and its owners will be taxed and the extent to which the entity will shield the owners and managers of the business from liabilities arising out of its activities. An increasingly important factor in choosing the form of entity, and its state of domicile, is the extent to which the fiduciary duties and personal liability of the entity’s board of directors (“Board”) or other governing persons may be limited in the entity’s governing documents.

Debt Collection: Turning Your Receivables into Cash

INTRODUCTION. Advising small business owners about collecting their receivables can be most useful if the advice comes before credit is extended on an account, rather than when the receivable is six months old. I have written this paper with the intent that I could make a copy of the outline and hand it to a small business client as a follow up to a conference in which I have explained the reality of turning receivables into CA$H.

Bankruptcy 101

The United States Constitution grants Congress the power to establish “uniform laws on the subject of bankruptcies throughout the United States.” U.S. Const., Art. 1, § 8, cl. 4. Federal bankruptcy laws are codified under title 11 of the United States Code, which is commonly referred to as the “Bankruptcy Code.” Congress’s stated goal of enacting the Bankruptcy Code was (i) equality of distribution among creditors and (ii) orderly rehabilitation or liquidation. H.R. Rep. No. 95-595, 95th Cong., 1st. Sess. 16, 177-78, 220 (1977).

Conflict of Interest: Who is Your Client

What is a "conflict of interest," and why is everyone so hyper about it? Licensed lawyers are given some very special powers. When we become attorneys, we become officers of the courts of the state granting the license and of the courts affirmatively “admitting” us to their respective bars pursuant to that license (e.g., federal courts).

Conflicts of Interest - Who's Your Client? - Advice to Corporate Counsel

These are the presentation slides.

Drafting Governing Documents

One of the very first steps in the lifecycle of a business is to form the business entity. The first decision will be to determine which type of legal entity will be the best fit for the business. Once the type of entity has been selected, the governing documents for that entity will provide the framework for the ownership, management and corporate governance structures of the business. This article provides an introduction to the types of entities available in Texas, the steps required to form a legal entity, and certain drafting considerations in connection with preparing an operating agreement for the entity.

Governing Persons and Owners in Action: Liability Protection and Piercing the Veil of Texas Business Entities Chapter 7.2

Sole proprietors and partners in a traditional general partnership enjoy no protection from the debts and liabilities of the business. The various business entities that provide some type of liability protection do so under slightly varying approaches. These variations are discussed below.

Governing Persons in Action: Overview of Fiduciary Duties, Excupation, and Indemnification in Texas Business Organizations Code Chapter 7.1

Statutory developments beginning in the 1990s have impacted the analysis of fiduciary duties in the business organizations context. The duties of general partners are now defined by statutory provisions that delineate the duties without referring to them as “fiduciary” duties and specifically provide that partners shall not be held to the standard of a trustee. Whether limited partners in a limited partnership have fiduciary duties is not well- settled, but the Business Organizations Code (BOC) clarifies that a limited partner does not owe the duties of a general partner solely by reason of being a limited partner. While the fiduciary duties of directors are still principally defined by common law, various provisions of the corporate statutes are relevant to the application of fiduciary duty concepts in the corporate context. Because limited liability companies (LLCs) are a relatively recent phenomenon and the Texas LLC statutes do not specify duties of managers and members, there is some uncertainty with regard to the duties in this area, but the LLC statutes allude to or imply the existence of duties, and managers in a manager-managed LLC and members in a member-managed LLC should expect to be held to fiduciary duties similar to the duties of corporate directors or general partners. In each type of entity, the governing documents may vary (at least to some extent) the duties and liabilities of managerial or governing persons. The power to define duties, eliminate liability, and provide for indemnification is addressed somewhat differently in the statutes governing the various forms of business entities.

How To Raise Capital Through Exempt and Limited Offerings

Protecting investors and ensuring efficient capital markets is one of the main purposes of the federal securities laws. Disclosure is one of the primary means through which these two objectives are achieved. This contrasts against the merit-based approach to regulating the capital markets, in which regulators evaluate the suitability of securities offered to the public. While a disclosure-based regime provides market participants with more autonomy, it also relies on their aptitude for discerning worthwhile and legitimate investment opportunities from mere lemons. More importantly, the success of a disclosure- based regime depends on the extent and quality of the disclosure. The securities laws mandate disclosure in a variety of circumstances. For instance, companies whose securities are listed on a national securities exchange must periodically disclose quarterly and annual information with the Securities and Exchange Commission (the “SEC”).1 This provides investors and analysts information upon which to make or recommend investment decisions. Also, when a company reaches a certain size in terms of its total assets and has a class of equity securities held by a certain number of persons, it too must disclose periodic information even if its securities are not listed on an exchange.

Intellectual Property 101

Intellectual property, which refers to any creation of the mind, can be the most valuable asset of a company, especially in this information age in which assets are generally of an intangible nature. Intellectual property, however, is only valuable if protected, using government-granted legal rights that grant limited monopolies to its creators. This article will focus on the concept of intellectual property, the identification of primary intellectual property types, the basics about protecting those types of intellectual property, and the legal remedies for violation of such rights.

Knowing Your Rights: What to Do When the Government Pays You a Visit

There are events in life that we just as soon not experience. Undoubtedly, that list includes a visit from a not-so-friendly federal law enforcement agent looking to indict someone. The agent announces he/she is investigating a crime and has arrived to interview people, search every nook and cranny of your home, office and belongings, and seize and take away whatever he/she deems relevant.