phot-file-sharing-300x163Traditional offices for many businesses are a thing of the past so information needs to shared more often and more widely. Employees may work from their homes and work that’s outsourced to independent contractors could be done in a business’ home city or on another continent. Businesses may also want to share documents with customers, prospective customers and contractors online for easy access. This method of doing business often involves the use of file sharing sites like DropBox or Google Drive. While this may be very convenient it can also result in the loss of legal protections if not done correctly.

“Privilege” is an exception to the rules of evidence when it comes to what can or cannot be used as evidence in litigation. An example is attorney-client privilege, which covers documents or conversations between a client or potential client and an attorney. Depending on what was said or written by whom, when, to whom, that may not be admissible, but it must be communicated in private. A conversation between a client and an attorney behind closed doors in an office may be privileged while the same conversation in a busy restaurant may not be.

Earlier this year a judge in a Virginia federal court in the case of Harleysville Insurance Co. v. Holding Funeral Home, Inc., ruled that Harleysville waived its right to privilege in a lawsuit when one of its employees uploaded documents to an unprotected file sharing site. The judge wrote that by uploading what otherwise would’ve been confidential documents to a site that was accessible by anyone with access to the hyperlink was like leaving them on a public bench for anyone to come along and take a look.

photo-fiduciary-rule-300x200Despite criticism by the President during his campaign about the fiduciary rule (as it applies to retirement investments) and his claims it would be stopped, the federal Department of Labor largely put it into effect on June 9, according to The Oregonian. Though like any rule or regulation, it may not live forever. If you’re making retirement investment decisions you may want to enjoy it while you can.

The rule was first put together by the Obama administration with the goal of trying to protect retirement investors from high costs and conflicts of interest by financial planners. The rule was delayed earlier this year after President Trump asked the Department of Labor to reevaluate the rule and the review is expected to last through January. Large sections of the rule are now in effect.
Why should you care about this?

Your financial advisor needs to act in your best interest, which is partially the definition of a fiduciary: a party putting your best interest ahead of his or her own, someone who can’t “self deal” (benefit him or herself to the detriment of the client).

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photo-employee-leaves-for-competitor-300x169Depending on your business and number of workers, it may be common for employees to leave for opportunities elsewhere. You may be disappointed to see a valued colleague and genuinely good person leave, you may actually be happy if the person is an under performer who’s hard to get along with or the person’s departure may make you upset or uneasy if he or she is a critical part of your team who’s joining (or starting) a competitor.
If that’s the case, after going through your emotions, it’s time to take action. One action you could consider is making a counter-offer. Perhaps you didn’t really appreciate the value of the person’s skill set and experience on the open job market. Given the time and effort that may be needed to find a replacement, the cost if you use a recruiter and the disruption that may be caused by having the position vacant for an unknown period of time, along with the fact you may potentially have to pay a higher salary anyway for a replacement, this might be the way to go.

If that’s not what you want to do, or if your counter-offer is rejected, there are steps you can take to protect your business. Depending on the facts of the situation, if the person had access to trade secrets or intellectual property and whether or not a contract between your firm and the employee was signed (and if so, its language), you may have some options based on state, federal and contract law.
Here are some suggestions on what to do…

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photo-suing-supplier-300x199No business is an island. Without trusted suppliers businesses would close shop. What happens when that trust is breached and you’re left holding the bag? If disagreements can’t be worked out and your company is facing or may face a serious loss as a result you may want to consider legal action against a supplier or former supplier.

Huy Fong Foods Inc., based in Irwindale, makes the Sriracha brand hot sauce from chiles (which are peppers). Without chiles there is no Sriracha but that hasn’t stopped the company from suing its chile supplier, Underwood Ranches, based in Camarillo, according to NBC4. Underwood’s website describes the company’s history and its current business including, “Today the farm grows red jalapeños for Huy Fong Foods…”The two companies have had a relationship for thirty years.

Underwood is being sued for breach of production agreement, breach of contract and civil theft. The complaint alleges,

2013_03_23__5016-300x200Whether you’re starting a new business, launching a new product or service or just haven’t gotten around to getting trademark protection for your logo, the names of your company or what you provide your customers, acting sooner is better than acting later. The more time passes the greater the chances another party may be able to trademark the same or similar words.

Trademarks are words, symbols or phrases that identify you as the seller of goods or services or the manufacturer of certain products. Trademarks distinguish them from other goods or services.

Perform a clearance search.

photo-IP-negotiations-300x200If you’re trying to sell your business it’s always good news to hear that a party is interested in buying. But what’s the next step? What happens if after the party looks you, your business and your books over, they decide not to buy? How do you protect your business?

One way to do that is through a confidentiality agreement. Whatever your business, no matter the service or products you provide, one of the most valuable things you have is information. That can include your financial numbers, sales information, marketing plans, customer lists and strategic plans. A potential buyer will want to know that information before making the decision to buy or not.

Before opening yourself and your business to scrutiny, obtain confidentiality agreements from prospective buyers. Here are some issues to think about when deciding what contract language will be right for you.

• You may want your identity kept confidential. If word has leaked out your business is for sale you risk your customers looking elsewhere and your competitors spreading the news to their advantage. One possible way to reduce the number of people knowing about the fact your selling your business is to make yourself anonymous. You could hire an advisor, investment banker or broker to reach out to possible buyers on your behalf while the identity of your businesses remains unknown. Your identity need not be revealed until the potential purchaser signs a confidentiality agreement. Continue reading

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Paris, France, December 10, 2013. LeWeb Day 1. Image by Dan Taylor/Heisenberg Media

Ride sharing behemoth Uber is keeping plenty of lawyers busy. The latest lawsuit concerns control over its board of directors and whether its founder and former CEO, Travis Kalanick, hid critical, damaging facts when he asked the board to allow three more members who he could name. This lawsuit comes after Kalanick resigned as CEO of the company in June after tales of company misbehavior and sexual harassment emerged but as he left as CEO he returned as a board member.

Earlier this month Benchmark Capital Partners, one of Uber’s first investors, sued Kalanick to try to prevent his return as CEO, reports the Los Angeles Times. The lawsuit was filed in Delaware Chancery Court and claims Kalanick breached his fiduciary duty and contractual obligations and engaged in fraudulent concealment by stacking the company’s board with allies to insulate him from possible repercussions of his actions and enable him to return as CEO. Uber and Kalanick are both named but damages are only sought from Kalanick.

photo-online-defamation-200x300Online reviews can help a business grow or cause it to shrink. They are increasingly powerful, double edged tools. Some businesses work very hard to obtain positive reviews and that effort can hit heavy head winds because of an anonymous, vocal, unhappy customer or two. If a business is harmed by a false, negative review, what can it do?

Americans benefit from free speech but that freedom has limits, including defamation. Generally if a business’ reputation is harmed by a false statement and it can prove damages, it may have a legal action for defamation against the party making the false statement. Defamation in a written form is libel while slander is oral defamation.

The California Court of Appeal, First District, Division Four issued a ruling in July protecting a business’ ability to fight online, anonymous speech that may be libelous (ZL Technologies, Inc. v. Does, Glassdoor) though in the context of employee, not customer, reviews. The plaintiff found that it received very poor reviews on the job posting website Glassdoor. They complained about management, compensation and its work environment, making it that much harder for ZL to find job candidates.

I just got off the phone with one potential client, and we are talking about a business dealing without a written agreement. No judgment zone here, but I just think it’s not a good idea. I understand that a lot of times, because of cultural influences or because of our own insecurity, if I ask that person to sign a contract, they might not like me, they might cancel the deal, or they might not go with me for this particular transaction.

Hey, I want to impress this client, so you know I want to show them I’m a person of action, and if I do the work first, I can always go back for the written agreement. Well, that’s not a good idea. From my many, many years of law practice, I can tell you that when you have a serious client coming in and retaining your services, they are expecting you to have a written agreement. With a written agreement, they think you are more professional, more trustworthy, more organized; and most important of all, they want to know what kind of transaction they have entered into with you.

photo-employment-contracts-300x204A contract is a legally binding agreement that spells out the rights and responsibilities of both parties. Employment contracts are becoming more common, especially as employers become more concerned with protecting their intellectual property and seek to channel any employment related disputes away from the courts and towards arbitration.

How far your business wants to take this is up to you. You could have all or none or your employees sign contracts or you may just target management or those whose departure may be particularly damaging to your operation if they decide to work for a competitor or start their own competing business.

On the plus side,