Make sure you properly register your business

March 31, 2014 on 10:30 am | In Merger & Acquisition, Neal J. Robinson | No Comments

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

Williamsburg, Virginia

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Choosing your Virginia Business Entity

March 31, 2014 on 10:30 am | In Business Planning, General Interest, John Tarley, Merger & Acquisition, Neal J. Robinson | No Comments

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

Williamsburg, Virginia

Neal Robinson

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When Raising Money For Investment Purposes From Any Source, BEWARE

March 31, 2014 on 10:30 am | In Business Planning, Merger & Acquisition, Neal J. Robinson, State & Federal Litigation | No Comments

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.

Ernst & Young

Continue reading “When Raising Money For Investment Purposes From Any Source, BEWARE”

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Does your Business use Employee Noncompete Agreements?

March 31, 2014 on 10:30 am | In Business Planning, Merger & Acquisition, Neal J. Robinson, State & Federal Litigation | No Comments

Originally posted 2010-08-17 22:37:52. Republished by Blog Post Promoter

Williamsburg Virginia Business Lawyers

Contract

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.”

Continue reading “Does your Business use Employee Noncompete Agreements?”

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The Same Employer But a Different Result in this Virginia Supreme Court Case Regarding the Enforceability of Non-Compete Agreements

March 31, 2014 on 10:30 am | In Business Planning, Employment law, John Tarley, Merger & Acquisition, State & Federal Litigation | No Comments

Originally posted 2011-12-13 08:00:55. Republished by Blog Post Promoter

Over the course of the past 20 years, the Virginia Supreme Court has tweaked the law governing non-compete agreements. In its latest case, the Court came full circle by invalidating a non-compete agreement that used the same language the Court had upheld 20 years earlier in a case involving the same company.

As we have written before, trial courts will enforce non-compete agreements when the agreements (1) are narrowly drawn to protect the employer’s legitimate business interest, (2) are not unduly burdensome on the employee’s ability to earn a living, and (3) are not against public policy. Importantly, the employer has the burden to prove each of these elements. When evaluating whether the employer has met that burden, trials courts should consider the “function, geographic scope, and duration” elements of the non-compete restrictions.  These elements are “considered together” rather than “as three separate and distinct issues.”

Further, if the non-compete agreement is too broad or otherwise unenforceable, a Virginia court will not rewrite, or “blue pencil” the agreement to make it enforceable. Therefore, it is important that you work with your business attorney to draft an enforceable non-compete agreement.

Continue reading “The Same Employer But a Different Result in this Virginia Supreme Court Case Regarding the Enforceability of Non-Compete Agreements”

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Common Interest Community Board revokes a management company’s license

March 31, 2014 on 10:30 am | In Business Planning, Common Interest Community, HOA, Merger & Acquisition, State & Federal Litigation, Susan B. Tarley | No Comments

Originally posted 2010-09-22 05:35:58. Republished by Blog Post Promoter

The Common Interest Community Board (the “CICB”) revoked a management company’s license for regulatory violations.  In a case reported in the September issue of the Community Associations Institute Law Reporter (Virginia Common Interest Community Board v. Sarraga t/a Lakeside Community Management, File No. 2010-00562, June 24, 2010), the CICB revoked the license of Sarraga t/aLakeside Community Management and issued fines totaling $2,000.

Continue reading “Common Interest Community Board revokes a management company’s license”

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Can an advisor be held liable for the false statements in a prospectus made by another?

March 18, 2014 on 8:45 pm | In Business Planning, Contributors, General Interest, Merger & Acquisition, Neal J. Robinson, State & Federal Litigation | No Comments

Originally posted 2011-06-14 09:00:41. Republished by Blog Post Promoter

Williamsburg Virginia Business Lawyers

United States Supreme Court

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?”

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What does it mean to be on the Board of Directors of your HOA? Fiduciary Duties (Part 1 of a series)

March 18, 2014 on 8:45 pm | In Business Planning, Common Interest Community, HOA, Merger & Acquisition, Real Estate Strategies, Susan B. Tarley | No Comments

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)”

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Can an advisor be held liable for the false statements in a prospectus made by another?

March 18, 2014 on 8:45 pm | In Business Planning, Contributors, General Interest, Merger & Acquisition, Neal J. Robinson, State & Federal Litigation | No Comments

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.

Williamsburg Virginia Business Lawyers

United States Supreme Court

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Why you should have a buy-sell agreement with your business partners

March 18, 2014 on 8:45 pm | In Business Planning, John Tarley, Merger & Acquisition | No Comments

Originally posted 2011-04-19 09:00:02. Republished by Blog Post Promoter


As we have previously noted, if businesses are analogous to marriages, then the start-up of businesses begins with the “honeymoon” stage in which the business partners believe that they have similar visions of the company’s rosy future. Things change.

The list of “things that change” is long including the death, retirement or disability of your business partner; you or your business partner wanting to sell your interest in the company; or one of you wanting to add another business partner. What do you do then? Continue reading “Why you should have a buy-sell agreement with your business partners”

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