According to Austin-based business lawyer
Jack Zinda, of the law firm Heselmeyer Zinda, PLLC, two of the most
productive tools for resolving legal disputes are mediation and
arbitration.
Mediation is typically negotiation facilitated by a mutual and
unbiased third party. Arbitration is a binding resolution process that
resembles the results achieved in a courtroom at trial – but with far
fewer technicalities and legal niceties entailed. “These are my tools
for resolving legal disputes,” explains attorney Jack Zinda of the law
firm Heselmeyer Zinda, PLLC, “Without them, resolving many legal
disputes would be much more time consuming and expensive.”
Mediation is very different from arbitration, however. “Sometimes
the parties are unwilling or unable to resolve a dispute,” Zinda says,
“and that’s when mediation can make a real difference.” It’s most often
short-term, structured, and task-oriented. “It’s a hands-on process,”
according to Zinda. The contentious parties work with a third party,
someone as unbiased as possible, who is referred to as a mediator – in
an effort to resolve their disputes. It’s up to the mediator to
supervise and moderate how and what information is exchanged between
the contentious parties so that a genuine bargaining process begins to
emerge. “The mediator is adept at discovering common ground that may
exist and deal with unrealistic expectations as they arise,” says
Zinda, “He’s also likely to introduce creative solutions and assist in
the final drafting of a settlement that everyone can live with.”
Arbitration is a much more formal alternative to litigation.
Contentious parties are also presenting their case to a neutral third
party, but this time the arbitrator renders a decision in the manner of
a judge. “Arbitration is generally considered more efficient than
litigation because it’s quicker, cheaper, and provides more
flexibility,” Zinda notes, “Typically the contentious parties get to
choose their arbitrator and exert at least a measure of control over
some aspects of the arbitration procedure.” Arbitrators are likely to
possess more expertise and specific knowledge of a relevant subject
area than mediators – or even judges. Evidentiary rules are not
applicable and discovery and cross-examination opportunities are
limited, however.
“The best thing about arbitration is that it’s voluntary,” Zinda
concludes, “and mediation is always discretionary. In litigation,
contentious parties are obliged to take their chances.”
Austin-based business lawyer Jack Zinda of the law firm Heselmeyer Zinda, PLLC offers some cogent advice for resolving partnership disputes.
Disagreements between business partners are often difficult to
resolve. Many issues can emerge as conflicts. Contracts can be
breached, business opportunities can be usurped, trade secrets can be
stolen, or funds can be embezzled – with or without impunity. Resolving
such conflicts can be time consuming, emotionally draining, and well,
they cause stress or worse.
“It happens all too frequently,” says Austin-based business lawyer
Jack Zinda of the law firm Heselmeyer Zinda, PLLC, “even the best
intentioned business partners often find themselves disagreeing for a
multitude of reasons.” Such disputes could arise from a failure to
honor fiduciary duties, a failure to fulfill contractual obligations
put forth in a partnership agreement, operating agreement or other
business contract, trade libel, disparagement of goods or services,
disputes among LLC members or perhaps by engaging in clandestine
business dealings which don’t happen to coincide with the best
interests of the company. “These disputes need to be resolved in an
expedient manner. Sometimes an issue that’s arisen can be resolved
internally, but most often they require legal help,” Zinda asserts.
If the dispute can’t be resolved internally, other options may
surface, including the dreaded one – litigation. Owners of close-knit
companies and small businesses will generally want their conflicts
resolved as amicably as possible, so that they can return to servicing
their customers. Negotiation, mediation, and arbitration are the best
ways to avoid litigation. Through these conciliatory routes it’s often
possible to arrive at a resolution made, if not in heaven, than in a
netherworld that makes sense to all concerned. “When a dispute occurs,
the business that you have worked to build and maintain can suddenly be
placed in jeopardy,” Zinda explains, “Our goal is to truncate a crisis
before it becomes a full-scale crisis.” Through alternative
dispute-resolution procedures such as negotiation, mediation, and
arbitration, it’s often possible to arrive at solutions that address a
business partner’s integrity issues or decision-making authority while
still preserving the infrastructure of your enterprise. “What you don’t
want to do is throw your firm’s functioning ability out with the nasty
bath water that’s been pooling in the office as a consequence of
antagonism.”
A certain degree of motivation and talent are required for starting
and managing a business – any business. But if certain mistakes are
made during the start-up phase, they can be difficult or impossible to
erase.
When considering opening a business, you first need to explore and
evaluate your personal and business goals. Why are you opening a
business? A plan is needed to help obtain your personal and business
goals. While developing a plan you’ll be forced to think through
important issues that otherwise may have gone unconsidered. This plan
will become an invaluable tool as you set out on the adventure of
business start-up.
Entrepreneurs open businesses for many reasons. Perhaps the
opportunity to gain financial independence through the full utilization
of your expertise acquired through an active life intrigues you.
Freedom of creativity is another perk of self-management. Some types of
business can be run quite successfully from your home, which is a plus
for parenting and juggling the omnipresent demands found in at-home
settings.
Once a plan of action has been decided upon, a choice must be made.
What business would be right for you? Begin with the knowledge and
skills acquired from previous work experiences or possibly hobbies or
interests at which you have excelled.
After the initial start-up of your plan, it’s usually prudent to
identify the niche that your business would fill. When deciding what
products or services to offer, keep in mind that competition will exist
no matter what your specialty area happens to be. The goal is to offer
an advantage the competition doesn’t have.
Other considerations are issues such as legal coverage, insurance,
how you will maintain business records, and the equipment necessary for
your business to run. It’s also an excellent idea to follow the famous
maxim used in the real estate industry: location, location, location.
The name that you select for your business is also important. Choose
something that makes sense and doesn’t rhyme with “stooges.”
Once you’ve developed a focused, well-researched plan for your
business, it will serve as a blueprint for future business operations,
management and capitalization. After you have completed your business
plan, be sure to review it with a business attorney or else run it by
someone who is knowledgeable about YOUR daily business operation. This
careful attention to detail will help to ensure success.
The federal securities laws require clear, concise disclosure about
compensation paid to CEOs, CFOs, and certain other high-ranking
executive officers of public companies.
Rules for executive compensation are governed by the federal
securities laws. Several types of documents that a company must file
regarding their executive compensation policies and practices should be
organized within a company’s proxy statement, annual report on Form
10-K, within registration statements filed by the company established
to register securities for sale to the public, and also should be
contained within the company’s current report on Form 8-K.
In the annual proxy statement, companies must disclose information
revealing the amount and type of compensation paid to its chief
executive officer and the three other most highly compensated executive
officers. Companies must also disclose the criteria used in reaching
executive compensation decisions and the type of relationship existing
between the firm’s executive compensation practices and company
performance.
The cornerstone of the Security and Exchange Commission’s required
discourse on executive compensation is The Summary Compensation Table
(SCT). In a single location, the SCT provides a comprehensive overview
of a company’s executive compensation practices. In larger
multinational corporations, these can become somewhat complex in their
structure, but will always bear a superficial resemblance to a flow
chart. SCTs must include the total compensation paid the firm’s chief
executive officer, chief financial officer, and three other most highly
compensated officers for at least three previous fiscal years. The SCT
is succeeded in order by other tables and precise disclosures
containing increasingly detailed information about the various facets
of compensation used during the most recently completed fiscal year.
Essential to include are grants of stock options, stock appreciation
rights, long-term incentive plan awards, pension plans, employment
contracts, and related arrangements.
An additional component of a company’s executive compensation
dossier is the Compensation Discussion and Analysis (CD & A).
Functioning in the manner of an appendix, this section should explain
all material elements of the relevant executive compensation programs
not yet addressed.
Non-compete agreements have been a troublesome item to understand for many people. However they are relatively straightforward.
A great many people don’t truly understand the ramifications of a
non-compete agreement, but if caught in a situation where the issue
raises its head, they usually get the drift fairly quickly. It all
boils down to the basic fact that a person selling a business agrees
not to compete or participate with the buyer of that business in the
same niche, area, industry or market for a certain period of time.
The long and short of it is this agreement is alternatively referred
to as a covenant not to compete or a non-compete agreement. This
document, provided it meets certain conditions, may be defined as an
acquired intangible asset accruing to the buyer. Be aware that this
means it will be subject to cost recovery requirements from the IRS.
These agreements are far more common than people think, and it is
customary when a business buyer and business seller iron out the terms
of their agreement that they include a non-compete agreement. It’s a
smart thing to do if it may be amortized for cost recovery for federal
tax purposes.
The business of buying an enterprise generally breaks down into
asset classifications: hard and soft assets. The hard assets are things
like the equipment on the premises, etc, and the soft assets are
intellectual property, the goodwill of the business and the non-compete
agreement (often also called a covenant). The difficult task for the
buyer often becomes trying to evaluate the price of the non-compete
agreement. This has to do with the IRS mandating that intangible assets
have to be depreciated over 15 years – much longer than those tangible
assets.
Figuring out precisely what the non-compete agreement is worth is a
headache of monumental proportions if done alone without the expert
guidance of a skilled business attorney. In general the attorney will
assist the buyer in determining how much damage the seller may be able
to inflict on the buyer’s new business without a non-compete agreement.
If the term confusion comes to mind, it’s time to speak with an expert
business attorney and get on with running the business.
When starting a new business it’s critical to have effective legal representation.
While it may be nice to think about starting a new business and
making a small fortune over a period of time, don’t forget the nuts and
bolts of what makes a good business viable. One of those fundamental
things is having access to a skilled business attorney who keeps the
business on track.
A lot of first time entrepreneurs make the mistake of thinking they
are able to handle their business affairs on their own. Unfortunately
the bankruptcy statistics tell another story. It only makes good common
sense to have a business attorney who is able to offer advice every
step of the way as the venture grows. Without this kind of expertise,
business owners may well find themselves in deep waters in mere months.
Some small business owners or would-be entrepreneurs wonder if they
need to spend the time and money to find an attorney so early in the
game. It may seem simple to try to handle things on your own but it
gets complicated quickly. The problem is that there are many issues
with any new business and these can only be answered by a competent
business lawyer.
It’s a fact of business life that the laws that apply to running a
business are often complex and confusing. Trying to muddle through the
legal jargon is something best left to a highly qualified business
attorney. While the attorney’s costs up front may be more than a
business owner was thinking to spend, the long-term savings by
following solid legal advice will more than make up for the initial
outlay. A good business attorney is worth their weight in gold, not
only for their skills, but for their invaluable knowledge.
Knowing the laws that govern a business is often a smart business
move. This isn’t to say that as a business owner, there is a
requirement to know the fine print in all situations. This is the
business attorney’s forte. Running a business and trying to keep up
with the various codes, restriction and laws is a headache best left to
the attorney who deals with those items on a daily basis. Business
lawyers are skilled in sifting through the morass of information and
providing options in plain English.
Attorneys will coach a new venture in the differences in setting up
a company as an S corporation, a partnership or another structure, or
perhaps an LLC. Having the attorney provide the outline of which route
would likely work best for the company being proposed, the entrepreneur
has one more thing off their plate in setting up their business entity.
In light of today’s volatile business markets, entrepreneurs need
the best advice available on how to set up their business. Only a fully
qualified business attorney will fit the bill and deliver what the
small business needs to start growing.
If you run a business, never be without an employment agreement. It
will be the best thing that you ever do to protect the business.
At one time people used to be hired to work somewhere with very
little in the way of formal paperwork. Sometimes it was even just a
handshake hiring where the employer’s word ruled and the employee did
what was requested of them as part of their job.
These days the times have changed drastically, and in addition to it
being essential to have an employment agreement, the workplace has
changed to one where adversity and employment issues often seem to be
the flavors of the month.
If you own and operate a business in the 21st century, one of the
first things you will need to have in place is a binding agreement for
work between your company and any executive you may choose to hire. The
bottom line is that the person is agreeing to perform various services
in trade for a wage. This kind of an agreement is not to be confused
with an executive compensation agreement. The executive employment
agreement, as outlined by an expert business attorney, is binding and
once the agreement has been signed by both parties, they are promising
to live up to the terms of the agreement.
Generally speaking an executive employment agreement has what is
referred to as a recitals section that speaks to the purpose of the
agreement. In most instances, the first recital refers to the company
wanting to hire a certain person in an executive position, and that
person wants to be hired in the position. In other words, although the
language may be legal, the intent is straightforward enough.
Common elements usually found in an executive employment agreement
are compensation and benefits offered, the term of employment, the
duties to be performed by the executive, the duties the employer has to
perform, a section dealing with keeping information confidential, a
non-competition agreement and what happens in the event of termination
clause.
Typically these types of agreements are best drafted with the
assistance of a skilled business attorney who will outline the “must
have” sections in agreements of this nature.
When a trade secret gets out or is stolen, the ramifications are
enormous; proof positive that trade secrets are valuable assets to be
protected.
If you haven’t seen the news in the last little while, you may be
astounded at the damage awards in two controversial trade secret cases.
One in California came in with a jury verdict of $36.3 million in
damages in a trade secret and breach of contract case. In Georgia,
there was another settlement of $37.3 million. There may be another
chapter written in both of these cases, as they may be appealed.
Having said that, the staggering amount of the awards serves to
point out something very important to the business community – trade
secrets are invaluable to businesses. The fact is that companies with
trade secrets they don’t want to lose to another company need to ensure
they are protected through non-disclosure agreements (NDA). There is
more than one way to protect secrets and it’s for this reason that an
expert Austin business lawyer is the best person to turn to when those
secrets need to be kept.
Non-disclosure agreements are not standard, run of the mill pieces
of paper that an employee signs. They are, in most instances,
tailor-made for a specific situation and in some instances for the
people who need to sign them. No business should consider operating
without a non-disclosure agreement if they have trade secrets that are
critical to their industry. For this reason they need to discuss with
the lawyer the categories of individuals who need to become acquainted
with an NDA as a prerequisite of their employment.
Within and outside of any corporation there are a wide variety of
individuals who may have access to a trade secret, and those include,
but are not limited to employees, consultants, customers, suppliers,
other existing or potential partners and angel investors or merger
and/or acquisition aspirants.
Struggling to keep a lid on that secret is of primary importance to
the company who will need to consider other methods of secrecy such as
encrypted password protection, storing critical material under lock and
key, limiting distribution of the crucial information and reminding
employees frequently that they need to keep what they know to
themselves.
Ironically, many a company that does have secrets to keep finds
themselves in the position of wanting to hire someone who used to work
for their competitors. This potentially awkward scenario is best
addressed by having the new employee sign specific employment
agreements to not divulge what they know. Obviously this would be a
sticky situation that may have the potential to blow up later should
the worker choose to talk about what they know despite having an
agreement in place.
Often when an employee is leaving a company and has had access to
trade secrets, they need to consider how to handle the potential
possibility of being sued for leaking those secrets. Whether or not
they are going to work for the competition or start their own business,
if they’re smart, they need to have a clear understanding in writing
about what they may take when they leave. The trick of course is living
up to that agreement.
Anyone who has been made sick by taking a drug with ghastly side effects knows full well they can take their deadly toll.
Getting sick means putting your trust in the hands of doctors,
pharmacists and drug manufacturers. Sometimes that trust is betrayed in
a way that results in serious injuries or death by taking defective
drugs. If someone takes a defective drug, there are product liability
laws designed to hold people responsible.
A defective drug is one that has severe adverse side effects. "It
isn't only a prescription drug, it may also be one sold over the
counter," indicated Jack Zinda, a partner at the law firm of Heselmeyer
Zinda PLLC, in Austin, Texas.
In some instances, drug companies know about the side effects and
market the drug anyway. In other cases, they find out about the side
effects later and either choose to keep the drug on the market, or have
it recalled by the Food and Drug Administration (FDA).
"The bottom line in cases involving a defective drug is that if the
drug caused harm to a person, and the drug company knew about the
dangerous side effects and chose to do nothing, they may be found
liable for the consequences," added Zinda. Drug companies are
responsible to test their drugs for side effects before taking them to
market. Additionally, they are required to advise people about those
side effects.
"Despite the fact that the U.S. FDA is mandated to safeguard public
safety and health, there are far too many instances where defective
drugs with deadly side effects are approved and remain on the market
despite reported severe drug reactions and deaths," stated Jack Zinda,
a partner at the law firm of Heselmeyer Zinda PLLC, in Austin, Texas.
The FDA doesn’t have enough manpower to keep track of all the drugs
brought to the marketplace, and they often find out about the side
effects later. This is often too late for people who took the drug(s)
believing that they were safe.
If faced with a situation where a drug has caused devastating side
effects or death, contact a defective product attorney post haste and
have the case assessed. Jack Zinda, partner at the law firm of
Heselmeyer Zinda PLLC, in Austin, Texas, handles these types of cases.
If the dog's bark is worse than his bite, a court case likely won't
be the end result. However, if the bite is worse than the bark, that is
another matter.
In some instances, a dog owner may face civil and criminal charges
if their dog takes a bite out of someone. While it might not seem like
a big deal, it may turn out to be that way.
Dog bite law is an interesting mixture of civil and criminal law and
the laws vary widely among jurisdictions. If faced with a dog bite,
it's best to hire a competent dog bite attorney who will know what the
law says in the particular jurisdiction where the incident took place.
An important issue in dog bite cases is whether the jurisdiction
follows the one-bite rule.
"The one-bite rule actually originated in English common law and
generally speaking, protects a dog owner until he has actual knowledge
his dog is dangerous/vicious. Once that becomes evident, the owner is
strictly liable for any injuries inflicted by the dog," explained Jack
Zinda, a partner at the law firm of Heselmeyer Zinda PLLC, Austin,
Texas.
Most states are fairly consistent in saying that an owner is liable
if any injuries were caused by negligence in handling the dog or by
violating a strict leash law. "If a person happens to live in a state
where an owner is considered to be liable by virtue of an existing
statute because they own the dog, hiring a dog bite attorney is the
smart thing to do," added Zinda.
If faced with a dog bite situation, make certain to assist the
victim to get medical attention if it is necessary. "Do not volunteer
any information to the person about the dog or the dog's habits or
personality. Save this discussion to have with the attorney," advised
Jack Zinda, a partner at the law firm of Heselmeyer Zinda PLLC, Austin,
Texas. If the dog has unexpectedly bitten someone, or even if it was
provoked to bite, immediately take all reasonable precautions to
protect anyone else from a dog bite.
If there were any witnesses to the dog-biting incident, get names
and addresses, etc. and call the insurance company to report the
incident. This is to make sure that if there is a claim, the insurance
company defends the owner in a lawsuit. If they are not aware of the
incident, any claims filed later may be denied. "Here is one tip that
most home owners don't know about, and that is insurance companies will
generally ask what breed of dog is on the premises because they will
either charge higher rates or decline to insure at all," said Zinda.
