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.
Originally posted 2010-08-17 22:37:52. Republished by Blog Post Promoter
The legal issues related to employee “non-competes” (also known as covenants not to compete or non-competition agreements) are often not well understood by employees subject to them, the companies insisting upon them, or the companies intending to hire persons subject to them. That may well be especially true in the Commonwealth of Virginia where one frequently hears, “That agreement is so broad it will never be enforced and Virginia doesn’t ‘blue pencil’ these agreements, so no problema.”
What does it mean to be on the Board of Directors of your HOA? Fiduciary Duties (Part 1 of a series)
Originally posted 2010-10-20 06:15:55. Republished by Blog Post Promoter
Board members are told that they have fiduciary duties to the community association, but what does that really mean? Fiduciary duties arise because the members of the association entrust a board member to act in the best interest of the association when handling the association’s business.
There are three components that are important to understand fiduciary duty. First, the Virginia Code, at § 13.1-870, imposes on directors a requirement that a director exercise her duties in good faith and in the best interest of the association. This requirement is the so-called “business judgment” rule. Second, Virginia case law imposes duty of care that requires a board member to act as a reasonable person would under similar circumstances. Third, Virginia case law imposes a duty of loyalty that requires a board member to put the association before any personal interest. These last two duties are referred to as “common law” duties. Continue reading “What does it mean to be on the Board of Directors of your HOA? Fiduciary Duties (Part 1 of a series)”
Originally posted 2010-12-02 06:55:49. Republished by Blog Post Promoter
An article in the Virginia Gazette featured a story regarding the indictment of a local attorney for the unauthorized practice of law; a criminal charge classified as a class 1 misdemeanor. Although those allegations did not involve a homeowner association, it highlights a recurring issue for volunteer boards of directors for many organizations including homeowner associations and not-for-profit organizations on which attorneys serve. This article focuses on those issues facing boards for homeowner associations (“HOAs”) but the issues are similar for other volunteer boards of directors.
Originally posted 2010-08-20 09:35:32. Republished by Blog Post Promoter
It may seem hard to believe, but there’s a chance you and your fellow members in your limited liability company may not always get along. In fact, the relationship may get to the point where the majority of the members in the LLC wants to expel a member. As Lee Corso says frequently on ESPN Gameday, “Not so fast, my friend.”
Originally posted 2011-05-12 09:00:25. Republished by Blog Post Promoter
It’s a simple fact of business life that you and your company’s fellow shareholders or members will not always see eye-to-eye. Furthermore, our personal lives change and that effects the level of willingness in which some participate in a business venture.
As in any relationship, businesses also reach that awkward stage in which a shareholder or member wants to leave his current business venture and start something new. We have discussed starting your business and provided guidelines for setting forth the rules for governing your business. This article addresses some of the difficulties that arise during the “break-up period.” For the purposes of this article, we will use the terms “shareholder” and “member” interchangeably, as well as the terms “director” and “managing member.”
Originally posted 2011-08-23 05:00:56. Republished by Blog Post Promoter
I teach as an adjunct faculty member at the William & Mary Law School. I find this part-time teaching gig very stimulating intellectually because the law students at W&M are extremely intelligent, diligent, and driven. This past week a new class of first-year law students arrived with great expectations about their futures. The reality of the job market, though, is that the legal profession has not been immune from the effects of this difficult economy.
Some of my second-year law students have also arrived back into Williamsburg, and I have been surprised at the number of students who report they worked as an “unpaid intern.” Although this practice is permissible in certain situations, these working arrangements with private law firms probably violates federal labor laws, and it is particularly distressing that it occurs in the practice of law. This blog post provides some guidance for your small business when deciding whether to “hire” an unpaid intern.
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 2011-09-08 08:45:06. Republished by Blog Post Promoter
We continually warn about the use of work email accounts to correspond with your attorney:
- 3 tips for safe emailing with your attorney;
- Using a company computer to email your attorney may be a bad idea
- Emails from work computer can waive rights to privileged communications
The American Bar Association has now opined that lawyers should “warn the client about the risk of sending or receiving electronic communications using a computer or other device, or e-mail account, where there is a significant risk that a third party may gain access.” Although the ABA’s opinion is not binding upon any state regulatory bar association, it is likely that state bar associations, like the Virginia State Bar, will review this opinion with interest.
Most of our communications are not private, even though we think they are. Work emails are not secure. Regardless of whether lawyers are required or suggested to warn clients, it is not a good idea to use your work email account to email your attorney.
Tarley Robinson, PLC, Attorneys and Counsellors at Law
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.