Let’s start out with a scenario that may be familiar to some of you. You’re starting a new company, or launching a new brand for your existing company. You have everything planned, even down to the brilliant name that you envision being mentioned in the same breath as Google, Facebook, and Twitter in the future. You think you’re ready to hit the ground running and put your company’s name and logo out there so your potential customers and investors can become familiar with your company.
Even with your detailed planning, have you done everything you should have done before you start using your company’s name or logo? If you haven’t given thorough consideration to the trademark issues relating to the name you plan to use, you could be setting yourself up for trouble. (more…)
Recently, the Equal Employment Opportunity Commission (“EEOC”) issued the results of a study of workplace harassment. The agency convened a task force to conduct this study in January 2015. The task force issued a report in June 2016. Task Force Report. It concluded that since the Supreme Court recognized that Title VII of the Civil Rights Act prohibits sexual harassment as a form of employment discrimination 30 years ago, “we have come a far way since that day, but sadly and too often still have far to go.” The report addresses not only sexual harassment, but also workplace harassment claims based on any one or more of race, disability, color, age, national origin, ethnicity, or religion.
Workplace Harassment Poses a Very Real and Costly Business Risk
The task force’s study examined the current scope of unlawful harassment in American workforces. It noted that about one-third of the nearly 90,000 discrimination charges filed with the EEOC in fiscal year 2015 included workplace harassment allegations. Those filing harassment charges represent the tip of the iceberg, because “[r]oughly three of four individuals who experienced harassment never even talked to a supervisor, manager, or union representative about the harassing conduct.” The report identifies the following reasons for the underreporting of unlawful harassment claims: fear of disbelief of claims, fear of inaction on complaints, blame, ostracism, or retaliation. Workers, instead, develop their own work-arounds, such as avoiding the harasser, denying or downplaying the seriousness of the situation, ignoring, forgetting, or enduring the behavior. It finds the filing of a discrimination charge or pursuit of formal action through an employer’s complaint procedure to be “the least common response to harassment.” (more…)
A plan or arrangement containing non qualified deferred compensation features may have to comply with the requirements of Section 409A of the Internal Revenue Code. Non qualified deferred compensation features can be present in any plan or arrangement which provides payment for services subsequent to the year in which the services are performed. A contract providing, for example, that an employee will be paid on December 31, 2017 for performing services for his or her employer in 2016 could be subject to Section 409A. Non qualified deferred compensation features can be in bonus plans, employment contracts, plans and arrangements for the payment of retirement benefits, phantom stock and stock appreciation plans, discounted stock options, separation and retention plans, post retirement fringe benefits, certain types of split dollar life insurance arrangements, top hat plans, Section 457(f) plans, change of control agreements and similar plans and arrangements. (more…)
Did the Federal Reserve Board overstep its authority when it defined someone who guarantees the debt of another as an “applicant” for credit? It’s an issue seemingly about as sexy as watching white paint dry. Still, of all the cases on the U.S. Supreme Court’s docket during the 2015–2016 term, which was so defined by the unexpected death of Justice Antonin Scalia in February, the one that stood out most to me was Hawkins v. Community Bank of Raymore, a case that boiled down to exactly that question. That’s because Hawkins touched on so much more than what an “applicant” is or is not.
What Is Reg. B, and Why Does It Matter?
Hawkins originated in Missouri and concerned validity of Regulation B (“Reg. B”), a federal lending regulation under the Equal Credit Opportunity Act (“ECOA”) intended to guard against marital discrimination in credit transactions. Reg. B protects applicants for credit who meet a lender’s creditworthiness requirements individually from being forced to procure their spouse’s guaranty on the debt, and it arguably protects the guarantors themselves as well. In other words, if an obligor can show the only reason she was required to obtain a personal guaranty from her spouse was because she had a spouse, she likely has a defense under Reg. B. (more…)
On May 11, 2016, a new federal law protecting trade secrets (the “Defend Trade Secrets Act”) went into effect. Prior to the law going into effect, remedies for trade secret theft were governed by the laws of the various states, which laws often provided for a lack of uniformity in enforcing trade secret protections. The new federal law has many facets to it, but the major change brought about by the law is that now, companies that have been the victim of trade secret theft have the option of suing under the federal statute, which allows for federal court jurisdiction and should provide for more uniformity in trade secret protection. (more…)
It’s an election season once again and jobs are in the forefront. There are real opportunities in those Brownfields to create jobs, particularly in areas which are disadvantaged. For example, “the Missouri Brownfields program awards various tax credits to businesses that remediate properties and create a specified number of jobs. In 2006 a study was performed to determine the investment value of 50 redeveloped sites. The study concluded that the total investment on the property was $2.2 billion. Approximately, 11,053 full-time jobs were created. Nearly 160 thousand tons of contaminated materials were removed, and 686 acres were successfully developed. Equally important, twenty-three historical buildings were returned to use.” Schmittgens, Eugene P. (2014) The Politics of Environmental Regulations: What Happened to Market Based Regulations? (Master’s Thesis) pp. 38-39. (I guess it’s OK to cite my own research) (more…)
A closely-held corporation can benefit from having an outside director with special expertise (e.g., strategy, marketing, HR, technology, finance and international business). However, potential outside directors are often reluctant to take on the role of a director of a closely-held corporation because of fiduciary obligations and other potential liabilities (e.g., environmental, employment discrimination, unpaid wages, unpaid taxes and regulatory liability).
A corporation can derive many of the benefits of an outside director, while avoiding many of the problems, by appointing an advisory board. An entrepreneur with a closely-held business may also be reluctant to dilute authority with outside directors, but may be comfortable with an advisory board which renders advice but has management authority or responsibility. (more…)
Suppose you go to your local hardware store, and order bathroom tile for a “weekend” project. Suppose you don’t pick it up within the time required because you are not ready install it. Then suppose you finally get to the point where you need the tile, but it is a year later. In Illinois, at least, if you order an item from your local hardware store but don’t pick it up within the store’s guidelines, you can’t go back later and claim you are entitled to the product and seek damages if they don’t give it to you.
In a recent opinion, Longo Realty v. Menard, Inc., No. 14M3430, the Appellate Court of Illinois, First District, held that a delay in picking up an “ordered” product did not entitle the consumer to purchase the product at the original price or claim damages because the store sold its inventory, and did not set aside and keep the product for the consumer in the event that he would possibly come back later and pick it up. (more…)
When it comes to corporations, LLCs, and other entities, people tend to focus on their birth rather than their death, with most available literature being on the pros and cons of different types of entities and how to go about creating one. But for reasons similar to why the birth of LLCs and corporations is a regular, ongoing need for many of our clients, so too is the death of these entities.
Of course, a classic example would be when a business ceases operations and is liquidated. There are plenty of more routine reasons why this might happen though. For example, an entity might be created for the specific purpose of holding one piece of real estate that is being developed or renovated. Once the work is done and the developer sells the real estate for a profit, what happens to the entity? Often, the entity, having served its purpose, is put through the dissolution process. (more…)
I often speak with owners of small businesses or start ups that want to protect their new product or ideas from being copied by competitors. Some tell me they would like to copyright their new product or idea. Some tell me they need a trademark for their new product or idea. And some say they need a patent for their new product or idea. So, which is it?
Intellectual property law, or copyright, trademark and patent law is a subject that usually doesn’t come up in the day-to-day conversation of entrepreneurs, so it is understandable that they are unsure of whether they need a copyright, a trademark or a patent to protect their new product or idea. The following provides some basic information on the three types of intellectual property and what they protect. (more…)