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…)
On March 14, 2016, the U.S. Department of Labor (DOL) submitted its final overtime rule to the Office of Management and Budget (OMB) for review. Review by the OMB is the final step before publication of the final rule and generally takes between four and six weeks. This means that employers may well see the rules come into effect before mid-May. Indeed, many believe that this is likely the DOL’s strategy, as publication of the Final Rule after May 16, 2016?would put it subject to the Congressional Review Act under the next presidential administration, giving Congress and the next administration the opportunity to nullify the rule.
Changes in Overtime Laws
Currently, the Fair Labor Standards Act (FLSA) requires all employees in the United States to be paid at least the federal minimum wage for all hours worked. In addition, these employees must receive overtime pay equal time one-half their regular rate of pay for all hours worked over 40 hours in a workweek. However, Section 13(a)(1) of the FLSA provides an exemption from both minimum wage and overtime pay for employees employed as bona fide executive employees, among others. (more…)
In a recent episode of the CBS television drama “The Good Wife”, characters used devices such as smartphones, to surreptitiously record conversations with others. While the storyline did not include these people facing liability for their actions, this depiction of events caused me to think back to Don Kelly’s previous blog post about the everyday liability traps posed by the Illinois Eavesdropping Statute!”
By way of reminder, the Illinois Eavesdropping Statute is an Illinois criminal law, but it can still trigger civil liability for violations. As a result, individuals and businesses are at risk of incurring liability under the statute for noncompliance based upon everyday activities. In this post, I will focus on what constitutes an “eavesdropping device” under the law.
According to the Illinois Eavesdropping Statute, an “eavesdropping device” is defined as follows:
“an eavesdropping device is any device capable of being used to hear or record oral conversation or intercept, or transcribe electronic communications whether such conversation or electronic communication is concluded in person, by telephone, or by any other means; provided, however, that this definition shall not include devices used for the restoration of the deaf or hard of hearing to normal or partial hearing.” (more…)
Employee Relations and Social Media Create a Toxic Mix
Businesses use social media to build their brands. Social media discussions, however, of employee relations issues frequently harm an employer’s brand. For example, recently a soon-to-be former Yelp employee blogged about her impoverished lifestyle because of the Bay Area’s high cost of living and the meager wages that Yelp paid her. She called her post Open Letter to My CEO. Yelp’s CEO then wrote five tweets about the Yelp employee’s post, including one in which he denied any personal responsibility for the decision to fire her and any connection between her blog post and her dismissal. CEO’s Response (see Feb 20 Tweets). In her own Twitter post, however, the employee disputed the CEO’s explanation for her employment’s termination: “[T]he HR lady & my manager straight up told me that the letter violated Yelp’s ‘Terms of Conduct’ and that’s why they had to let me go.” An online controversy ensued between those that supported the employee as a champion of exploited workers and others that viewed her as an entitled Millennial who needed to accept the responsibility for her situation and to overcome it by working more than one job and getting roommates. For an example of the entitled Millennial side of the argument, see Open Letter to Millennials. (more…)
On February 9, 2016, in an “extraordinarily rare move,” the Supreme Court stayed the rule which required the states to limit green-house gas emissions. The vote was 5 – 4 along ideological lines. These 5-4 votes have become common place in recent times.
Just a few days later, Justice Scalia, a leader of the conservative block on the court was found dead at a ranch in Texas. As a result, the 5-4 conservative majority is no more. And, until a replacement is appointed, many of the decision which were split along the ideological lines will now result in 4 – 4 decisions (See here for an interesting juxtaposition to the granting of the green-house gas stay). This reality means that whatever the decision of the appellate court from which the appeal was taken, will remain the law of that circuit, and there will be no controlling precedent.
Regardless of one’s ideological perspective, both sides seem to agree that we may likely see a shift in environmental policy (see here and here). One need only look at the decision to stay the green-house regulation to see the impact. Had the vote been taken today, there would have been no stay. (more…)
Preapproved, defined contribution plans, such as 401(k), profit sharing and money purchase pension plans, must be amended and restated to comply with recent changes in tax and ERISA laws by April 30, 2016. Failure to timely amend and restate your company’s preapproved, defined contribution plan by this date could cause it to be disqualified for tax purposes causing your company and plan participants to incur additional taxes and penalties.
A retirement plan is preapproved if the Internal Revenue Service has reviewed and approved the form of the plan which an individual plan sponsor may use to amend and restate its plan. These types of preapproved plans are called “prototype or volume submitter plans”. A preapproved plan consists of an adoption agreement, upon which a company can select the specific provisions which will apply to it and its plan participants, and an underlying plan document which contains provisions that are generally applicable to all defined contribution plans. Typically, a plan administrative company, a mutual fund family, other financial institution or a law firm will submit the general form of an adoption agreement and plan document to the Internal Revenue Service for approval. Once the form of an adoption agreement and plan document are approved by the Internal Revenue Service, the firm submitting the form will have its customers or clients use those documents to amend and restate the individual plans for their companies. Almost all plans now sponsored by employers are documented on preapproved forms. (more…)
Often in my practice I’ll write documents that call upon a client who owns all or part of a limited liability company (“LLC”) or other entity to sign more than once on the same signature page. This may seem silly, but it serves an important purpose. Sometimes the dual signature is required because the client is both the manager and a member (owner) of the LLC, and sometimes it’s because the client’s signature is required both as a representative of the LLC and in his or her personal capacity. In any case, whether a person’s signature is meant to bind their company or just that person individually is an important distinction.
A key benefit of the LLC entity structure is that individuals who wish to start a business can do so with a great deal of flexibility and relatively little formality required. Providing a hybrid between the pass-through taxation of partnerships and the limited liability for owners provided by corporations, LLCs have become the dominant form of entity for most types of businesses, from mom-and-pop shops, to real estate holding companies, to subsidiaries of large corporations. LLCs are inherently simple; and yet, even simplicity has its complications. (more…)