Originally posted 2010-08-19 08:45:43. Republished by Blog Post Promoter
The analysis of the enforceability of noncompete agreements begins with the question “How did the covenant not to compete arise?” Employee covenants not to compete generally arise in one of two ways: 1) solely as a result of employment; and 2) arising as ancillary to another agreement, such as an agreement to purchase the prospective employee’s business.
Originally posted 2010-06-14 01:00:38. Republished by Blog Post Promoter
I have often been struck by how much business counseling and marriage counseling can be alike. “He said he was really good at marketing and was going to handle all the sales. We haven’t seen a worthwhile sale in months. All he does is drive around, I GUESS making sales calls, but mostly just spending money.” “She said she was going to keep the books and handle the personnel issues. I didn’t know that meant a row of shoe-boxes full of receipts and employee turnover at seventy percent! This place is a disaster!” “Turnover is at seventy percent because we don’t have enough sales to keep anyone employed. If you did your job, then maybe I could do mine.”
He said, she said. And so it goes. It is estimated that fifty-five percent of all first marriages fail and approximately 56% of new businesses fail within four years. Here are some of the reasons most often given for start-up business failures.
Originally posted 2010-12-27 10:49:33. Republished by Blog Post Promoter
Raising money or obtaining other property for investment purposes from whatever source in Virginia, including from family and friends, implicates state and federal law.
Some may have read about the recent action for fraud filed by Andrew Cuomo, the Attorney General of the State of New York, against Ernst & Young, LLP, one of the largest accounting firms in the United States. Some, noting that this action was not brought under the Securities Exchange Act of 1934, may have wondered from whence the Attorney General’s authority arose. Authority arose under the Martin Act, a New York law initially passed in 1921, and amended and codified in 1982 in Article 23-A of the New York General Business Law.
What is important for those in the Commonwealth of Virginia attempting to raise money or obtain other property for investment purposes is that Virginia has similar securities laws. Virginia’s Securities Act is codified in Title 13.1, Chapter 5, of the Code of Virginia. As with that of the State of New York, the reach of Virginia’s Securities Act differs from, and is more extensive than, that of the federal securities acts.
Originally posted 2011-06-14 09:00:41. Republished by Blog Post Promoter
Previously we blogged about a pending case before the Supreme Court that had the possibility to significantly increase the liability of persons for assisting in the preparation of a “prospectus.” As of June 13, 2011, the Supreme Court handed down an opinion in that case, styled as Janus Capital Group, Inc. v. First Derivative Traders, No. 09-525 (S. Ct.).
The determination of this case is relevant to accountants and business lawyers who assist in the preparation of documents for the purpose of raising money for investment. The Janus Capital Group, Inc. case presented the question of who may be deemed to have “made” an untrue statement for the purposes of Rule 10b-5, and specifically whether someone who assisted in the preparation of a prospectus could “make” a statement through such assistance. As the result of a 5-4 decision, accountants and business attorneys may breathe a little easier. Continue reading “Can an advisor be held liable for the false statements in a prospectus made by another?”
Originally posted 2011-01-05 09:57:12. Republished by Blog Post Promoter
For all you accountants, investment advisors, and even attorneys who provide advice and guidance to companies or other entities raising money or other property for investment purposes, it might be a good idea to pay particular attention to the
United States Supreme Court opinion, when issued, in the case of Janus Capital Group, Inc. v. First Derivative Traders, No. 09-525 (S. Ct.). This case was argued before the Court on December 7, 2010. The Court’s opinion should be issued sometime during the first half of 2011.
Janus Capital Group, Inc. is somewhat factually and legally complex. However, in very simplified terms, First Derivative Traders is attempting to assert primary Securities Exchange Act Section 10(b) fraud liability against an entity,
Janus Capital Management LLC, that “helped” and “participat[ed] in” preparing a prospectus. The prospectus was actually that of, and was issued by, Janus Funds, a separate entity. Janus Funds had its own lawyers review the prospectus. Further, the Funds’ Board of Trustees, which was primarily responsible for it, reviewed it, as did the outside Trustees of Janus Funds, who also had their own counsel review it.
The United States (i.e., the Securities and Exchange Commission) filed an amicus brief in this case advocating such indirect liability in private actions, never mind the right of private action was judicially, not statutorily, created.
Originally posted 2011-03-15 09:00:12. Republished by Blog Post Promoter
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There are many questions to ask and many issues to resolve when you decide to start your Virginia business entity. The time to ask those questions and resolve those issues is before you enter into your business agreement.
Neal’s 3-minute slideshow presentation gives an a brief primer on the forms of entities that are available and questions to start your dialog with your business attorney and business partners. This slideshow combines basic information with more advanced concepts for the more experienced entrepreneur.
Tarley Robinson, PLC, Attorneys and Counsellors at Law
Originally posted 2010-06-18 12:30:24. Republished by Blog Post Promoter
Though the majority of businesses in the United States are sole proprietorships, those of you who read an earlier post know that I recommend, for a myriad of good reasons, that an entity of some kind be placed between a person doing business and the rest of the world. Find an experienced business attorney to help establish your business entity.
In this post, I address briefly the general partnership form of business entity, the only form I consider more dangerous to the financial health of an individual than the sole proprietorship. Why, you ask? Because with the sole proprietorship, the sole proprietor is personally liable for the acts of the sole proprietor, the business and the business employees. In the general partnership, the partners are personally liable for the acts of the business, the employees and each other. What partners do can be fairly unpredictable, like contracting to purchase or lease things that cannot possibly be paid for out of the profits of the business, or like contracting to do that which cannot possibly be done profitably.
Originally posted 2011-07-12 08:30:35. Republished by Blog Post Promoter
The short answer is, rarely. Virginia is an at-will employment state. This means that an employer can discharge an employee for any reason or for no reason at all, just not for an unlawful reason. An employer who terminates an employee for an unlawful reason may be liable to the employee. The question answer in this blog post is: when is a reason unlawful?
Originally posted 2010-05-02 21:48:26. Republished by Blog Post Promoter
From time-to-time we have counseled clients whose companies were formed in other states, but they are also conducting business in Virginia. One task that sometimes gets overlooked is the necessity to properly register their corporation in Virginia. That oversight could have disastrous consequences, including personal liability for officers, shareholders, and agents for corporate actions. Fortunately, Virginia’s State Corporation Commission gives us an informative primer on the necessary requirements, including the relatively simple steps to register your foreign corporation. Remember that if you have a Virginia company doing business in other states, it is most likely that those states require a similar registration process. Among the reasons you form a company is to shield yourself from liability. Make sure you have taken care of all your responsibilities.
Tarley Robinson, PLC, Attorneys and Counsellors at Law
Originally posted 2010-11-15 10:50:28. Republished by Blog Post Promoter
Frequently, budding entrepreneurs merely evolve into business without giving it the upfront thought the transition deserves. They become what are usually known as “sole proprietors” operating “sole proprietorships,” or one-man/woman businesses.