What is the Legal Doctrine of "Surviving The Closing?" When you are buying or selling a San Diego business, there will be a sales contract. Among the provisions of sales contract will be various “representations and warranties” made by the various parties. A “representation” is a factual statement. A [...]
Buying a San Diego Business? Four Must-Have Seller Representations and Warranties When you are buying a San Diego business, there will be a sales contract that sets out all of the covenants and conditions of the sale. In the sales contract, your trusted and experienced California corporate attorney has [...]
San Diego Corporations: What are Shareholder Rights? When you become a shareholder of a San Diego corporation or any corporation in California, you become an owner of some interest in the company. As an "owner," you have certain rights, just like the owner of land has certain rights, like [...]
San Diego Business Law: What is an Unpaid Internship? Unpaid internships can be beneficial to both the young intern and to the San Diego business "hiring" the intern. But businesses must be careful because under some circumstances, the "intern" might be considered an "employee" who must be paid for [...]
#MeToo Gets a Victory: Confidential Settlements Will No Longer be Tax Deductible Sexual harassment continues to be in the news. As we wrote recently, sexual misconduct in Hollywood and in the media has been a huge continuing story. It seems like new allegations are made every day. Indeed, it [...]
San Diego Corporate Law: What is an Incorporator? When you want to create a corporation for your San Diego business, you can hire what is known as an "incorporator." Your trusted and dedicated corporate attorney can be your incorporator; in fact, most often the incorporator is your corporate attorney. [...]
After You Incorporate, What Next? Congratulations on your newly incorporated San Diego, California corporation. Filing the incorporation papers with the California Secretary of State is not the end of the process. There are several important steps to take after you have become an "Inc." Here is a quick list. [...]
San Diego Businesses: Checklist for Protecting Your Computer From an Angry Administrator We have written recently about the need to protect your digital and virtual assets. One of many possible threats is a rogue or angry or vindictive recently-fired network administrator. Bad situations do happen; Uber recently was forced [...]
California Corporation Law: Can Minority Shareholders be "Controlling" Shareholders? As we have discussed, it has long been the law in San Diego and California that majority shareholders of corporations and other corporate entities owe fiduciary duties to other shareholders and owners. Among those duties are: Duty of loyalty to [...]
Franchise vs. Licensing Agreement: What is the Difference? Most of us are familiar with franchises. Many fast food restaurants and retail stores are franchises. Services can also be franchises, like tax preparation companies. In general, a franchise is a business form where you pay a fee to the franchisors [...]
What is a Buy-Sell Agreement for a San Diego Business? For small businesses with only several owners, a buy-sell agreement establishes up front the terms and conditions under which owners can be bought out, and at what price and under what conditions. Buy-sell agreements are essential for closely-held and [...]
Five Pitfalls to Avoid if You are Starting a New San Diego Business Launching your new San Diego startup is exciting and opens a new chapter in your life and in the lives of your family and your business partners. But, everyone knows that starting a new business can [...]
Doing Your Due Diligence When Buying a San Diego Business Doing Your Due Diligence When Buying a San Diego Business When contemplating buying a San Diego business, as the buyer, you must always engage in what is called "due diligence" before finalizing the purchase. Basically, due diligence is research [...]
California Mergers and Acquisitions: Reasons to Assume the Target's Debt In the news recently is the announcement by fast-food chain Arby's Restaurant Group that it will acquire Buffalo Wild Wings for $2.4 billion in cash. The deal calls for Arby's to pay $157 per share in Buffalo Wild Wings [...]
How Being an "Inc." or an "LLC" Enhances Your PR Campaigns Every business needs public relations ("PR") campaigns, and converting to a California corporation or Limited Liability Company can help your PR campaign be even more successful. PR campaigns are different that mere advertising -- that advertising is part [...]
San Diego Business: Using Attorneys' Fees Clauses to Your Advantage We here at San Diego Corporate Law believe that, when possible, every San Diego business should use their business contracts to their advantage. That includes the use of attorneys' fees clauses with teeth. California Corporate Law: What is an [...]
San Diego Businesses: What is Trade Libel? In a competitive marketplace, you advertise your San Diego business and you try to set yourself apart from competitors. So, you make a few statements about your competitor; you do a bit of "trash-talking." Sometimes, these statements go too far and slip [...]
Checklist for Official Social Media-Use Policy for Managed Employees (Part II) This is the second in our series of posts about writing your company's official social media use policy. In the first part, we tackled the issue of generalized social media use for your employees when you do NOT [...]
Digital Assets and Account Information: What San Diego Businesses Need to Do As business becomes increasingly internet-based and focused on mobile and social platforms, many San Diego businesses are accumulating what are known as "digital assets." This is good. Digital assets are online financial accounts such as Paypal, and [...]
San Diego Business Law: Updating Your Company Sexual Harassment Policies San Diego Business Law: Updating Your Company Sexual Harassment Policies Since Harvey Weinstein was "outed" as a sexual predator back in October 2017, sexual harassment has been in the news nearly every day. Dozens of other celebrities, politicians, and [...]
Contract Law: Can You Shift a Burden of Proof Via Contractual Provision? Contracts are essential to San Diego and California businesses. Generally, contracts are intended to simply facilitate operations such as purchasing supplies and services, making sales, and locking in employees. Sometimes contracts can be used -- and should [...]
San Diego Commercial Leases: What is CAM? "CAM" stands for common area maintenance with respect to rent-like charges that are usually contained in commercial and retail leases. As we recently discussed, most commercial and retail leases are "triple net leases." The lease is "triple" in that the tenant pays [...]
Raising Startup Capital in San Diego: Comparing Regulation D vs. Regulation Equity Crowdfunding Most people have probably heard of “crowdfunding.” As the name suggests, crowdfunding is the obtaining of small amounts of money per person -- the “funding” -- from a somewhat large group of people -- the "crowd" [...]
Equity Crowdfunding: A Quick Primer for San Diego Startups Equity crowdfunding can be a viable option to help San Diego and California businesses and entrepreneurs raise startup working capital. However, because equity crowdfunding involves the offering and sale of "securities," anyone considering crowdfunding should make sure to get counsel [...]
Basics of The Attorney-Client Privilege (Part IV) As discussed in Part I of this series, the attorney-client privilege shields and protects from disclosure confidential communications between an attorney and his or her client. In Parts II and III, we explored factual matters and information not subject to the privilege [...]
Basics of the Attorney-Client Privilege (Part III) As discussed in Part I of this series, the attorney-client privilege shields and protects from disclosure confidential communications between an attorney and his/her client. In Part II, we explored various factual matters and information not subject to the privilege. In this Part [...]
Basics of the California Attorney-Client Privilege (Part II) As discussed in Part I of this series, the attorney-client privilege shields and protects from disclosure confidential communications between an attorney and his or her client. Every San Diego business needs a trusted and skilled business attorney. In this Part II, [...]
Basics of the Attorney-Client Privilege in California (Part I) Most of us think of lawyers as people who provide services. However, many forget that lawyers have legal and ethical obligations that prevent them from disclosing your confidential and secret information. This is called the attorney-client privilege. This is how [...]
What is a Legal Audit Letter? As your San Diego and California business grows, you are going to eventually need audited financial statements prepared by a certified public accountant ("CPA"). If you have sought out conventional investor financing, having such certified financial statements is often a prerequisite to obtaining [...]
What are Estoppel Certificates? When you are running a business in San Diego or anywhere in California, your business likely has many contracts and agreements. These include leases that you might have for retail or office space and might include vendor and supplier contracts. Likewise, any sort of financing [...]
What to Expect When Selling Your San Diego Business When selling your San Diego or any other California business, there are basically three stages in the process -- sometimes a fourth stage if you have agreed to provide post-sale training or have agreed to other post-sale obligations. Here is [...]
San Diego Business Contracts: The Importance of Including Severability Clauses Sometimes, despite the best efforts of your talented business attorney, a court examines a contract and determines that some provision in the contract is void or unenforceable. This happens sometimes because of a change or clarification in the law [...]
California Business Contracts: What is the Merger Doctrine? San Diego and California businesses largely operate on the basis of contract law. Often, the contracts are simple and pre-printed; other times the contracts are lengthy and complicated. Likely, the longer contracts went through several versions and had many revisions. If [...]
San Diego Businesses: Using On-Time Payment and Interest Clauses With any contract in which payment is not due on delivery -- typical vendor and service contracts, for example -- it is essential to communicate in the contract the expectation that payment will be made on time; monthly interest provisions [...]
Checklist for Writing an Official Social Media Policy (Part I) Even if your San Diego business is small, with just a couple of employees, it is important to have a social media policy statement. Indeed, you may need TWO policy statements: one for regular employees and another for employees [...]
What is a California Nonprofit Corporation? A Quick Primer As the name would imply, a nonprofit corporation is a corporation that is formed for any purpose other than trying to make a profit. Charity and religious organizations are good examples. That is not to say that a nonprofit does [...]
San Diego Businesses: A Few Tips for Mining Your Data to Drive Marketshare Every San Diego and California business gathers data. "Data" does not have to be anything mysterious or processed by room-sized computers. Data can be as simple as your rolodex full of names, numbers, and addresses. Moreover, [...]
Are Cryptocurrencies "Securities" Under California Law? SEC Offers Guidance Cryptocurrencies have been in the news lately with Bitcoin reaching the $19,000 plateau in mid-December 2017. Some analysts are predicting that Bitcoin will surge even higher, though other analysts disagree. See report here. But, Bitcoin is not the only cryptocurrency. [...]
The Value of Mediation as an Alternative to Litigation As we have said in the past, every San Diego and California business can expect to have business-related legal disputes at some point. Disputes arise not necessarily because someone is behaving badly, but often are because mistakes happen or circumstances [...]
San Diego Liquor Festivals and California State Trademarks Many San Diego and California businesses understand the importance of trademarks. Many are familiar with the fact that registering trademarks is done through the US Patent & Trademark Office. However, it is less well-known that a San Diego business can register [...]
California Contract Drafting: Employee vs Independent Contractor Many San Diego and California businesses have employees and many have independent contractors, and some have both. Whether a worker is considered an "employee" or an "independent contractor" has important implications for many aspects of a business including: Labor laws Taxation -- [...]
Considerations When Crowdsourcing Your R&D and Marketing For the last few years, crowdsourcing research and development ("R&D") and marketing has become the big "in" thing for San Diego and California businesses. A good example is a certain national brand of potato chips that has been running a yearly new-chip-flavor [...]
The Value of a Demand Letter Sent by Your Trusted Business Lawyer It is almost inevitable that, when running your San Diego business, you are going to end up in various business-related disputes. Some vendor will not deliver, some customer does not pay, or your landlord has made a [...]
What is New With California Franchise Relations Law? The relationship between a franchisor and franchisee is governed by the California Franchise Relations Act ("CFRA") codified at Cal. Bus. & Prof. Code, § 20000 et seq. The CFRA covers renewal, nonrenewal and termination of franchises. There have been some recent [...]
How Talented Legal Counsel Can Help Your Business Grow Every business needs a talented and experienced business lawyer. Aside from providing good advice, a talented and dedicated business lawyer is actually "good for business" and can help your business grow. Here are the ways that we here at San [...]
Checklist for Forming Your New Corporation or LLC: Lessons from Club de Cuervos Whether you and your friend(s) are starting a new business or whether you are finally taking that momentous step and converting from partnership to corporation or LLC, here is a checklist of issues to decide in [...]
The Importance of Shareholder's Meetings We recently wrote about the board of directors and corporate directors of San Diego corporations. In this article, we discuss the importance of shareholder meetings. Although these kinds of meetings may be less frequent, they are often more important. San Diego Corporations: Typical Structure [...]
Legal Characteristics of the Corporate Form Corporations and other corporate forms are common in our economic landscape. Average people deal with corporations in every aspect of their lives, from the grocery store to cell phone service providers. Many people probably know that corporations are formed by filling out and [...]
Another Reason to Incorporate: Establishing a Business Credit Rating There are many advantages to creating a corporation to run your San Diego business including: Shielding personal assets from business-related creditors Tax expensing options Other potential tax benefits -- "S" Corp status, for example Transferability of the business Continuity of [...]
Duties Owed to Other Shareholders When Dissolving the Corporation Under California law, all officers, directors, and majority shareholders owe fiduciary duties to minority shareholders and to other members of the corporation. Among the most common claims of breach of fiduciary duty are: Self-dealing Diversion of business opportunities. Most often, [...]
YouTube and Specific Performance in California (Part II) With respect to business contracts in California, if there is a breach of contract, sometimes the remedy of "specific performance" is available. Cal. Civ. Code, § 3384 provides that "[e]xcept as otherwise provided in this Article, the specific performance of an [...]
What is Specific Performance in San Diego? (Part I) With respect to business contracts in California, "specific performance" is one of several remedies that a San Diego business can seek for breach of contract. For this part I on specific performance in California, here are a few basic legal [...]
California Businesses: Yes, You Can Limit the Right to Sue Generally speaking, business contracts serve two purposes - one, to effectuate your deal and, two, to limit your risks and legal liability as much as possible. One of the best ways to limit your legal liability is to obtain [...]
Selling a San Diego Business: What is Your Duty to Disclose? Selling a business in San Diego is a complex and time-consuming process. Your skilled and talented business lawyers, like the ones at San Diego Corporate Law, have drafted and redrafted the sales contracts. Now everyone is in the [...]
Data Breaches and Data Protection for San Diego Businesses Every successful business should have a website and a web presence. Along with the positives of e-commerce, there come many responsibilities. We wrote recently about how businesses must keep their websites in compliance with the American Disabilities Act and two [...]
California Private Security Exemptions: What is a Preexisting Relationship? Sales of securities in California are governed by the California Corporate Securities Law of 1968 codified at Cal. Corp. Code, § 25000 et seq. Violation of the law can lead to criminal, civil, and administrative proceedings. San Diego Securities Law: [...]
San Diego Medical Professional Corporations: What Fiduciary Duties are Owed? In San Diego, medical professionals -- healing arts practitioners -- are able to form Professional Corporations pursuant to the Moscone-Knox Professional Corporation Act. See Cal. Corp. Code, § 13400 et seq. As with all corporations, the main purpose of [...]
Breach of Contract in San Diego: The Types of Damages Available If you are running a business in San Diego or in any other part of California, you are constantly dealing with contracts. Hopefully it is rare, but at some point, you may end up in a contract dispute. [...]
Who is a "Director" With Respect to Your San Diego Corporation? In general, San Diego corporations are run by a Board of Directors. The Board meets regularly to make important, strategic decisions. Among those decisions are hiring a chief executive officer ("CEO") and then authorizing the CEO to run [...]
Six Mistakes to Avoid When Running the Family Business A family-owned and family-run business in San Diego should be treated as seriously as any other business. In San Diego County, California, there are six mistakes to avoid when running your family business. Failure to Get Permits, Licenses, and Registrations [...]
When is a San Diego Contract Voidable Because of Mistake? There are many defenses to a breach of contract lawsuits in California. One of them is mistake. A mistake can be unilateral, made by only one party to the contract, or bilateral, made by both parties. Excellent and trusted [...]
What is the Parol Evidence Rule? If your San Diego business has signed a contract for, say, exploration and development of natural gas and oil on certain lands, but a dispute arises over the contract, then you will likely end up in court. The parol evidence rule is a [...]
Who can Sign Contracts for My San Diego Business? Most business contracts are made in writing and, occasionally, the question arises: Who can sign contracts for my business? In short, the answer is owners and anyone who the owners authorize to sign contracts on behalf of the business. In [...]
Can a San Diego Business Really Accept an Offer by Silence? As we have recently discussed here, the basics of contract formation are offer, acceptance, and consideration which creates a meeting of the minds. Generally speaking, "acceptance" is saying or writing or acting in some way that expresses agreement [...]
What is Vicarious Liability? In San Diego, businesses are liable for the acts of their employees when the employees are working. In general, employees are agents for their employers and all principals can be held liable for the acts or omissions of their agents when conducting the business of [...]
How is a San Diego "Fiduciary" Different from a San Diego "Agent"? In San Diego and all across California, businesses and even ordinary people hire and retain agents. Think, for example, about buying a house. You go online or make phone calls and hire a real estate agent. That [...]
San Diego Business Contracts: What is a "Time is of the Essence" Clause? You sometimes see a clause in a California business contract that simply says: "Time is of the essence." You may ask yourself: What does that mean? In basic terms, a contract provision stating "Time is of [...]
San Diego Businesses Trading With Mexico? What is The Convention for the International Sale of Goods? Many San Diego businesses are familiar with basic California business law and business contracts. Many are familiar with the Uniform Commercial Code. But what is CISG? That is an acronym that stands for [...]
What is a San Diego Joint Venture? Under California law, a joint venture is a type of general partnership. Like a partnership, California case law defines a joint venture as an undertaking by two or more persons or entities to jointly carry out a single business enterprise for profit. [...]
San Diego Corporations: The Importance of Board Minutes Many California corporations know that meetings of the Board of Directors are required at least once a year. However, some may not recognize the importance of board minutes. Here is a brief discussion of why board minutes are so important. To [...]
Expelling a Member of a San Diego LLC: You Should Revise Your Operating Agreement When you start your new business, everything seems perfect. But times change and now you have this troublesome member of your LLC. You ask yourself: How do I expel a member of my LLC? As [...]
Brief History of the LLC Have you been wondering: Should I form a corporation or an LLC? Here at San Diego Corporate Law, we can help you decide which type of entity will best meet your needs, and for many people means forming California limited liability companies ("LLC"). A [...]
Family Businesses: A San Diego LLC is a Good Choice Family-run businesses are unique and have their own special needs. Forming a San Diego limited liability corporation ("LLC") can help by: Protecting the family assets Clearly identifying management responsibilities Providing for succession of management Estate planning Family businesses are [...]
How are Government Contracts Different? Recently, we here at San Diego Corporate Law have written about various aspects of corporate and business law including the need for and importance of having written contracts. We occasionally get questions from clients about government contracts and how those contracts are different. Because [...]
E-Commerce and the Need to Incorporate As we here at San Diego Corporate Law have written on several occasions, there are many good reasons to incorporate. However, when contemplating starting a global e-commerce business or expanding your existing business into global e-commerce, incorporating is essential. There are just too [...]
Executive Employment Agreements Require Special Attention With San Diego employment contracts for regular employees, there are the standard provisions regarding job duties, dress code, anti-harassment and discrimination provisions, etc. However, with executive level employees, a well-drafted and well-considered employment agreement is essential both to protect your business and the [...]
What is a Letter of Intent? In general, a letter of intent is a shortened version of a longer contract that is expected to be written covering all the aspects of a complex deal. Sometimes, the letter of intent can become the actual final contract and, if all the [...]
Be Careful Using Endorsers and/or Influencers to Promote Your San Diego Business The hottest trend in advertising is the use of social media endorsers (aka "influencers"). Caution is warranted, however, because if you and your San Diego business fail to properly disclose pertinent information, your business will run afoul [...]
What is a California LLP? We recently wrote about the features of general partnerships and also about limited partnerships. Under California law, there is one more type of partnership that can formed: a California limited liability partnership (a "California LLP"). A California LLP can only be formed by and [...]
Tips for Starting Your Own San Diego Holiday Pop-Up Shop The holiday season is upon us. Along with everything else cheery and bright, the holiday season brings an infusion of pop-up shops. Some San Diego bars are converting to themes for the winter holiday and New Year’s and national [...]
Is Reverse Corporate Veil Piercing Allowed in California? In August of 2017, in the case of Curci Investments, LLC v. Baldwin, 14 Cal. App. 5th 214, the California Court of Appeal for the 4th Appellate District approved a reverse piercing of the corporate veil. This is new law, since [...]
What is a "Security" Under California Law? Many people are aware that the offer and sale of securities are governed by federal and California law. The applicable California law is the Corporate Securities Law of 1968 ("CSL"). See Cal. Corp. Code, §§ 25000-25707. In general, § 25110 of the [...]
San Diego Law: What is the Business Judgment Rule? (Part I) The business judgment rule provides personal immunity to directors of a corporation from being sued by the shareholders and/or investors if a decision made by the directors turns out to be a bad one. The business judgment rule [...]
San Diego Startups: What's in a Business Name? When you think about starting up a new business, the first thing most people think of is a name. Usually, people choose a name for the business that is special to the people starting the business. Maybe something about father and [...]
The Duty to Mitigate Damages The duty to mitigate requires a party suffering a breach of contract to take reasonable steps to mitigate those damages. In general, if you or your business suffers a loss or is damaged because a third party has breached a contract, you have the [...]
An Action Plan for Protecting Your Trade Secrets As we discussed here, trade secrets are often the key to seizing and maintaining marketshare in a fiercely competitive marketplace. Trade secrets are protected under the California version of the Uniform Trade Secrets Act ("UTSA"). See Cal. Civ. Code §§ 3426, [...]
When is "Lack of Consideration" a Defense to Breach of Contract? As we wrote more fully here, a legally enforceable contract requires three main ingredients: offer, acceptance, and consideration. "Consideration" is something of value exchanged to make a contract legally binding. "Lack of consideration" is a valid defense to [...]
What is a Release? As the name would imply, a "release" is a legal document, or sometimes a paragraph in a contract, that releases or gives up some legal claim or right. Releases are used in many areas of the law: Litigation: settlements and release of claims Property law: [...]
Impossibility as a Defense to Breach of Contract Sometimes events happen that make it impossible for a business to meet its obligations under a contract. In true situations of impossibility, impossibility becomes a defense to a claim for breach of contract; that is, the courts will say that [...]
The Implied Covenant of Good Faith and Fair Dealing Every business contract -- indeed, every contract -- contains an implied covenant of good faith and fair dealing. Breaching this implied covenant can subject your business to litigation and to damages. A good business lawyer can help. What is the [...]
The Importance of Written Contracts: Avoiding Vague and Uncertain Terms Any good business lawyer will counsel a business owner on the need for written contracts. One important reason for reducing your agreements to writing is to avoid vague and uncertain terms that will not or cannot be enforced [...]
What is the Difference Between the Duty to Indemnify and the Duty to Defend? Many business contracts include duty to indemnify and duty to defend provisions. The question arises: What is the differences between the two duties? This article delineates important differences. In short, the two duties are [...]
What is New with California Social Purpose Corporations? On October 11, 2011, to great fanfare, California enacted the Corporate Flexibility Act of 2011 creating two new corporate forms called “flexible purpose corporations” and “social benefit corporations.” In 2014, those were combined and renamed as “social purpose corporations.” The [...]
What is a California Limited Partnership? In simple terms, a California limited partnership is a partnership with one or more partners who are "limited" in terms of management and liability. A California limited partnership can be best understood in comparison to a California general partnership. California General Partnership: [...]
What is a Breach of Contract? In every aspect of running your business, you are constantly dealing with contracts. So, what is a “breach of contract?” In theory, the legal concept is common-sense: You have breached the contract if you fail to do what you agreed to do. [...]
How a Good Business Lawyer Helps You Survive in the Marketplace Starting any business is risky. According to one report, eight out of 10 new businesses fail within the first 18 months. As the article says, that is a "whopping 80% crash and burn" rate. However, there are [...]
Advice on How to Avoid False Advertising Claims Both federal and California law prohibits unfair and deceptive business practices including making false statements in advertising and on your packaging. Here is a brief description of the legal issues and some advice on how to avoid false advertising. What [...]
What Should be Included in a California Partnership Agreement? Being in business with friends and/or colleagues can be highly rewarding, both personally and economically. You and your partners share a common vision, share similar values, and work together to build self-worth and achieve business success. But, disputes arise [...]
Medical Practice Breakups: Are Patient Records Trade Secrets? Some of the most acrimonious business "breakups" are ones involving medical practices. When a physician separates from his or her former practice, there is a natural tendency to want to migrate the patients to the new practice. That raises the [...]
A Checklist for Hiring Your First Employee Starting your own business is exciting, but also challenging. One of the most daunting tasks is formally hiring your first employee. This task is risky, too. Here is a checklist of steps to take before you officially become a boss. Define [...]
