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    The Greater Williamsburg area is an exciting place to live and work, especially because of the large number of entrepreneurs who have built businesses from the ground up. These entrepreneurs have taken their passion and made it their profession. Many of us want to take that step. Before you begin, you need to think of the type of business entity you want to form. Our attorneys have extensive business experience, from small one-person companies to publicly traded major corporations. Our attorneys are among the leaders in Virginia in the representation of Common Interest Communities. These communities are generally referred to as "homeowners associations," or "HOAs," and "condominium associations." In the greater Williamsburg area alone, we provide legal assistance to nearly 100 associations. Our attorneys have successfully prosecuted and defended a wide array of civil disputes involving community association covenant enforcement, commercial transactions, construction disputes, contracts, real estate matters, boundary line and easement disputes, employment matters, antitrust litigation, copyright violations, administrative proceedings, and estate issues. Real Estate law encompasses a wide variety of matters, and our attorneys have vast experience to assist you. Whether you need assistance with a commercial or residential closing, or you have questions relating to residential or commercial leasing, we provide experienced advice and counsel to our clients. Zoning law can be a complicated maze of statutes and ordinances. We have ample experience in successful applications for rezoning, variance, and special use permit requests. Finally, commercial and residential construction provide special challenges with respect to financing issues and the construction process. We serve as counsel to various financial institutions.

What Should You Expect From Your Attorney?

April 23, 2020 on 2:13 pm | In Business Planning, General Interest, HOA, John Tarley, Merger & Acquisition, Real Estate Strategies, State & Federal Litigation | No Comments

I read a recent article in the ABA Journal that differentiated between the teaching of “issue spotting” versus “problem solving” in law schools. This article strikes at the core of the services we provide as attorneys. We believe firmly that although it is our responsibility to help identify potential issues that you may face, our legal advice is fully realized when we help you solve your problems.

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When is a “Contract” not a Contract?

April 23, 2020 on 2:13 pm | In Business Planning, Construction litigation, General Interest, John Tarley, Real Estate Litigation, State & Federal Litigation | No Comments

We know that in Virginia, the parties to a contract are bound to the terms of that contract. We also know that Virginia courts look to the terms of that contract to determine each party’s rights and obligations. But what is a “contract?” This blog post looks at a recent Virginia Supreme Court case that gives a little guidance to answer that question.

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Common Interest Community Board revokes a management company’s license

April 23, 2020 on 2:13 pm | In Business Planning, Common Interest Community, HOA, Merger & Acquisition, State & Federal Litigation, Susan B. Tarley | No Comments

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.

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Can your business enforce an employee noncompete agreement?

April 23, 2020 on 2:13 pm | In Business Planning, Merger & Acquisition, Neal J. Robinson | No Comments

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.

 

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Additional Tips For Seeking PPP Loan Forgiveness

April 23, 2020 on 2:13 pm | In Business Law, Business Planning, John Tarley | Comments Off on Additional Tips For Seeking PPP Loan Forgiveness

The final PPP loan regulations are not yet released as of April 23, 2020, but there are certain things we are pretty sure about: you will need to meticulously document your spending on allowable expenses in order to receive full forgiveness for your loan.

At the end of your 8 week period following your PPP loan disbursement, you will need to submit your forgiveness to your lender. Your lender will make the decision on whether a portion or all of your PPP loan is forgiven. At a minimum, your request should include:
• Written proof of payroll costs;
• Written proof of the number of full-time equivalent employees with their pay rates;
• Written evidence of invoices and payments you made on eligible mortgage, lease, and utility obligations; and
• Certification that all supporting documentation provided are true and that you used the forgiveness amount to keep employees and make eligible mortgage interest, rent, and utility payments.

You should be compiling this information from the moment you receive your loan, so you are not scrambling later on, and to ensure that the payments you made from the PPP loan proceeds comply with the restrictions. If you can put your PPP loan proceeds in another account, even better to track! If you have questions about proper documentation, contact your accountant or financial advisor.

Again, we hope this information is helpful, but please note that this blog post does NOT constitute legal or tax advice. These are simply my observations and notes based upon information I have gathered through an analysis of the CARES Act, an analysis of proposed regulations governing the PPP, and my attendance at numerous webinars given by tax and banking experts explaining the PPP.

YOU SHOULD CONTACT YOUR TAX ADVISOR AND BANK FOR PERSONALIZED INFORMATION FOR YOUR CIRCUMSTANCES.

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

April 23, 2020 on 2:13 pm | In Business Planning, Employment law, John Tarley, Merger & Acquisition, State & Federal Litigation | No Comments

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 noncompete 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 noncompete 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 noncompete restrictions.  These elements are “considered together” rather than “as three separate and distinct issues.”

Further, if the noncompete 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.

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You obtained a PPP Loan? Here are some answers to questions you may have on spending the funds

April 23, 2020 on 2:13 pm | In Business Law, Business Planning, John Tarley | Comments Off on You obtained a PPP Loan? Here are some answers to questions you may have on spending the funds

With the COVid-19 Pandemic, amongst the financial packages available to small businesses is the Payroll Protection Program (“PPP”). Small businesses must make themselves aware of the benefits of these loans. This blog post assumes you were able to obtain a PPP loan, and provides you with basic information you need to know, if you want your PPP loan to be forgiven (essentially converting the loan to a grant).

Please note that what follows is NOT legal or tax advice. These are simply my observations and notes based upon information I have gathered through an analysis of the CARES Act, an analysis of proposed regulations governing the PPP, and my attendance at numerous webinars given by tax and banking experts explaining the PPP.

YOU SHOULD CONTACT YOUR TAX ADVISOR AND BANK FOR PERSONALIZED INFORMATION FOR YOUR CIRCUMSTANCES. The purpose of this blog post is to provide you basic information that you can use to educate yourself about the PPP loans, so you can use that knowledge to ask more informed questions of your financial professionals.

First, if you were funded with a PPP loan, the period of time for calculating possible forgiveness of the loan is 8 weeks from the time you were funded. Therefore, if you were funded on April 20, 2020, your allowable expenses can only be calculated for the 8 weeks after that date.

Second, as the name suggests, the PPP is primarily to be used for payroll. At this point, it appears as though your business must spend at least 75% of the PPP funds on payroll in order to qualify as fully forgiven. Be advised that no employee (or owner) can be paid from the PPP loans at an amount greater than $100,000 per year, pro-rated over the 8-week period.

What constitutes “payroll?” Here are the current general guidelines, but there are more specifics that go beyond the scope of this blog post, so your particular situation may vary:

  • Draws or distributions to owners;
  • Payroll to full-time equivalent employees (payments made to independent contractors reported on a 1099 are not considered “payroll” because ICs are not “employees” and will not be calculated in your payroll). Also, the payment of state and local income tax on employee compensation counts in the “payroll” category;
  • Payment for group health-care benefits, including insurance premiums; and
  • Employee retirement benefits.

Third, besides payroll, you can use the PPP loan to pay your business’ lease or mortgage payments. Again, the 8 week period applies, and prepayment of future rent or mortgage probably will be disallowed in calculating the “forgiven” portion of your PPP loan expenditures.

Fourth, you can use the PPP loan proceeds to pay your business’ utilities expenses, as well as interest on any other debt obligations that were incurred before you obtained the PPP loan.

As you can see, the PPP loan can work for sole-proprietors, as well as small businesses with multiple shareholders/members. You are an employee of your small business, along with any other employees you may have.

Finally, so long as you follow the guidelines, your PPP loan will be forgiven if the proceeds are used for the program’s intended purposes (see above) over a period of time no more than 8 weeks from when your loan was funded. The bank where you obtained your PPP loan will make the determination of forgiveness, based upon your documentation and your expenditures. For any amount of the loan used that does not meet the PPP loan criteria, that amount will NOT be forgiven.

As a reminder, nothing in this blog post should be considered legal advice or tax advice, but instead is a very basic overview of how to spend your PPP loan proceeds. Contact your tax or financial advisers for your particular situation. But in any case, document every PPP expenditure you make to support your case to have the entire PPP loan forgiven.

At the end of the day, we know many of our small businesses cannot afford to seek out legal advice at this time, but it is vitally important that if we are to survive the financial crisis arising out of this novel Coronavirus pandemic, and we have to be willing to help each other out. As information is made available, we will keep you updated as best we can. Stay safe!

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Immigration and Employers – Remember your I-9 Forms

April 23, 2020 on 2:12 pm | In Business Planning, Common Interest Community, John Tarley, Merger & Acquisition | No Comments

There are many issues for entrepreneurs starting and operating their small businesses. In that light, immigration is not just a national issue involving major companies. Small businesses must be aware of government requirements, too.

Since 1986, the Immigration and Nationality Act has required employers to to verify that its employees are able to accept employment in the United States. Consequently, the I-9 form was developed. Every employee must complete an I-9 form at the time of hire. Employers are required to ensure the form is completed within three days of hire. Furthermore, even if the company engages contractors, the company could be liable if it knows the contractor employs unauthorized workers. Obviously, criminal penalties await those who fraudulently fill out the I-9 form, but civil penalties also can be levied against companies who fail to keep proper records, even if the employee is legally authorized to work in the United States.

As always, ask your attorney to make sure that your company’s legal issues are covered so that you can focus your energy on growing your business.

Tarley Robinson, PLC, Attorneys and Counsellors at Law

Williamsburg, Virginia

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It’s time for your Small Business to audit its Corporate Documents

April 23, 2020 on 2:12 pm | In Business Planning, John Tarley | No Comments

Many of our New Year’s Resolutions address our personal health, but owners of small businesses should also resolve to address your corporate health. Small businesses operate with great attention to the product or service the company provides, but little energy is left to review the infrastructure of the company. Issues such as shareholder agreements, key person insurance, disability insurance, annual meetings and other corporate necessities are given short shrift because of the attention we pay to running the business.

Williamsburg Virginia Business Lawyers

Business Agreements

This blog post provides a few suggestions to help you overcome a problem unique to small businesses: spending too much time working in your business rather than working on your business.  Continue reading “It’s time for your Small Business to audit its Corporate Documents”

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Fictitious Name filings: Make sure you file properly for your business

April 23, 2020 on 2:12 pm | In Business Planning, General Interest, John Tarley, Merger & Acquisition | No Comments

Many businesses operate under a fictitious name, otherwise referred to as “doing business as” or “d/b/a.” There are many reasons for this use, but primarily, a company can use a catchy business name, like when a franchise opens a “T.G.I.F.” or “McDonalds,” but the company’s actual corporate name is not as exciting.

According to the Virginia Supreme Court, Virginia requires a company operating under a different name to file that name with the court and the State Corporation Commission “to prevent fraud and to compel an individual or a corporation to disclose the name of the real owner of the business, in order that the person or corporation may sue in or be sued by the proper name.”

Virginia statutes set forth the process for registering your fictitious name. For restaurants or other single location businesses, the process is pretty simple. First, you file a fictitious name certificate with the court clerk in the jurisdiction where your business is located. After the certificate is recorded, you file the certified copy with the State Corporation Commission.

Problems can arise for construction companies and other types of businesses who transact business in several localities. For those companies, you must file a fictitious name certificate in each county or city where you conduct business. We have had several matters in which these types of businesses failed to properly register their fictitious names in all the jurisdictions where they conduct business. For one thing, those entities cannot bring a lawsuit to collect monies due until they rectify that problem.

“Doing business as” is just another issue to consider when you set up your company. Make sure you fully advise your lawyer so all of your filings can be completed early, and correctly.

Tarley Robinson, PLC, Attorneys and Counsellors at Law

Williamsburg, Virginia

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