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Put The Scalpel Away. Document Factories: Legal Doom or Legal Boom?

In Uncategorized on March 19, 2012 at 9:18 am

               Sooner or later we all go under the knife.

               The gall bladder decides to imitate a fist-sized sandspur in your gut. That hernia painfully reminds you much too late that there are people who charge reasonable rates to move that leather sectional into your buddy’s third floor walk-up. The tired rotator cuff from your glory days slinging curve balls keeps you awake at night once too often. You spend a week in Aspen on crutches after that knee ligament twangs and snaps like a guitar string on your third turn off the gondola.

              

               It happens.

               Now imagine this: After your misfortune you swallow a handful of ibuprofen, throw a bag of frozen peas at the pain and settle down in front of the laptop or, okay, your ipad. Hospitals and doctors are way too expensive, at least that’s what your aunt’s brother’s mechanic tells you. Why not see if there is a website that sells self-surgery kits?  You know, for one low price (certainly less than those rich doctors must charge) you get a few step-by-step directions, a scalpel, a little gauze and surgical tape and a handful of antibiotics and pain meds to get you through two or three days of post-op agony. For a few extra bucks a doctor you’ll never meet who is in a location you’ll never visit will look over the pre-op and surgical procedures designed specifically for you … oh, and for anyone else who happens to have an angry gall bladder. Heck, you can even call her before you slice your flesh, just to make sure you’re clear on the procedure and to let her remind you that you are saving yourself so much money. Thanks, come back again!

               Farfetched?  Perhaps, but good people with noble intentions do essentially the same thing every day with what is more often than not the biggest investment of their life: their company.

               Granted, it ain’t brain surgery but the crucial importance assigned to the legal sufficiency, relevance and resilience of the documents and contractual provisions one puts in place to govern a company or an LLC cannot be exaggerated. And every company is different, with unique owners, varying revenue streams and infinite options related to management and shareholder powers. This arena is simply no place for rubber-stamped cookie cutter documents to be shoved down the collective throats of a widget manufacturer in Idaho, a restaurant consortium in Vermont and a plumber in Florida.

               The proliferation of legal document “form factories” on the internet, where you answer a few questions, fill in a few blanks, pay a few hundred bucks and pray the house of cards doesn’t topple, all done in the time it takes to eat a sandwich, may end up spelling Legal Doom to business owners in the long run. And then whom do you blame? The faceless “lawyer” from parts unknown that you email chatted before hitting the “I Agree” button on the terms and conditions? Did you even read those terms and conditions?  But no big deal, right? It’s only your company.

               One such “service” proudly promises to provide you with “a personalized operating agreement.” Well, thank the Lord! When you’re paying good money it is definitely way cool to actually have your name on the agreement, I mean right? And they promise that the LLC or corporation documents will have “provisions to protect your personal assets.” Phew!  But wait a minute … Duh! Would a shareholder want it any other way? Isn’t that why Mr. Business Owner wants an LLC to begin with? Hello?

               Now, cynics (none of those here, of course) may speculate that these faceless form farms present a potential Legal Boom – a true opportunity – to real, live and breathing brick-and-mortar sit-and-talk answer-your-questions lawyers, lawyers with an enthusiasm and a dedication to hands-on professional service and the client’s personal and corporate asset protection.

               And those cynics would be correct.

               So throw the frozen peas back in the freezer, put the scalpel away and connect with a lawyer you can look in the eye. Bring along the cookie cutter documents, too. We’ll have plenty to talk about.

               All the best.

               Bill Yanger

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Splat! Agreements To Agree Are Stinky Business. Just Ask Congress.

In Uncategorized on November 21, 2011 at 3:15 pm

               We are trying so hard not to say it. Really, we’re trying, promise.

               But there is just no way around it. The reality is too stark and the lesson is too valuable.  So…

               We told you so.

               There, said it.

               Back in August, Congress pulled its epic fail on the debt ceiling crisis and then, with fingers pointing every direction but at themselves, dove head first into an orgy of self-congratulation after tossing the hot mess into the hands of the pompously named Super Committee and proclaiming to the world that they had “a deal.” In our post back then “Not In My World” (yes, by all means, read it again…) we said:

              “They have done nothing more than agree to agree…This is less governance than it is sanctioned procrastination. And in my world, the real everyday world, the world of business contract language that necessarily binds the parties to specific action and defines the consequences of failure or breach or inaction, slippery procrastination just don’t cut it, Brother. If you and your company are able to pawn off your tough and gritty decisions to some hazy “commission” and still turn a profit, more power to you. I suspect that is not the case.”

               As has become clear today, that slick dodge and toss in August has boomeranged back to Capitol Hill with a sickening splat. And it stinks. Badly.

               But told you so.

               An agreement to agree is not an agreement. It’s a negotiation, a delay, a punt. It is simply an invitation to be lazy now and then tangle later.

               Don’t do it.

               All the best.

               Bill Yanger

Stardust, Sunlight Jr. and Jobs, Jobs, Jobs: Are You Listening Governor Rick?

In Uncategorized on October 28, 2011 at 4:07 pm

              

                A few cheers went up across the state and particularly in the Tampa Bay area today when yet another big-name film production announced it would be shooting in Clearwater in the coming months. Writer-director Laurie Collyer (Sherrybaby) will begin four weeks of filming Sunlight Jr* starring two soon to be revealed Oscar-nominated actors**. On the heals of  Dolphin Tale and Magic Mike starring Matthew McConaughey and Channing Tatum, the area is certainly on a roll.

               Florida is one of many states with a financial incentive package created to attract film and television production to the Sunshine State. Besides the stardust excitement a big-time theatrical release will generate locally and the international publicity that will necessarily flow from a successful film release, there is a far more basic incentive for the incentive, so to speak.

               Jobs.

               Really good jobs, in fact. Clean, recurring high-paying jobs. “It’s jobs, and it’s publicity,” Jennifer Parramore said in today’s St. Petersburg Times story here. “The kinds of jobs that are created with a movie are highly skilled jobs, and generally well-paid… When you have a film come in you’re both hiring local people, as well as renting hotel rooms for people you have to bring in; heads and beds, meaning the dollars spent for everybody who’s here every day,” she said.

               So, what’s not to like? Pass a bill that reasonably provides the goodies producers are looking for, make it competitive with other state’s incentives and go get the films, right?

               Well, we have a film incentive. It’s a good one but it could be better, much better. When we rarely go a day without some news event related to Governor Rick’s efforts on job creation, the Legislature must take a more aggressive stance and pass a bill offering incentives that film producers simply can’t refuse.

               Are you listening Governor Rick? If so, how about nudging your pals in in the House and Senate in the right direction. They shouldn’t need much convincing.

               All the best.

               Bill Yanger

               *Title corrected 11/1/11.

                **Now known to be Naomi Watts and Matt Dillon

Oops, I Did It Again: Governor Delete Channels Brittany Spears

In Uncategorized on September 28, 2011 at 9:54 pm

               Back on August 20th we talked to you about the good Governor Scott’s “oopsy” deletion of potentially thousands of public record emails and why it should be a wake up call to you and your business.

               According to news reports today, the good Governor apparently doesn’t read “Consider this…”

               Yet.

               So, as a public service, we are providing him the opportunity read it again by clicking HERE, or in full, below:

               You may have heard that Gov. Rick Scott’s transition team was recently found to have brazenly trashed…or, err…mistakenly deleted a trove of public records, actually email communications.

               Oops.

               The emails likely detailed much of the team’s discussion of hiring decisions, Cabinet vetting and policy development during that crucial period between his election and unlocking the front door of the Governor’s Mansion. We’re talking 40 to 50 email accounts. That’s accounts, not individual emails. Easily thousands of pertinent, perhaps sensitive, communications governed by Florida’s public records law.

               Oh, the fun we could have ranting about conspiracy theories, pervasive hubris and a continuing pattern of disdain for the rule of law and the sun shining on their cozy cabal. “Public record laws? Pfffft!”

               But that’s not where we’re headed today. Giving the bumblers the benefit of the doubt, there are lessons in the good Governor’s stumble. I mean, think about it. If this could happen to an apparently sophisticated staff of nationally credentialed professionals who retained an assumedly seasoned and competent private vendor to handle email organization and retention, what does that say about you and your company?

               The whole “back-up” thing is important, sure. We’ve all lived through the gut wrenching realization that our computer has puked, sending us into an apoplectic daze while the IT X-Men copter in to the rescue. But there is a collateral legal issue perhaps equally important and more to the point of the stink Gov. Scott has found himself in over this issue:

               Um…email retention policies.

               Wait, wait! Don’t leave, please. I know it ain’t sexy but I assure you it is necessary. Like a Level One Trauma center, you don’t need it until you need it, and then, thank the lord, you’ve got it nearby.

               See, there is this thing called spoliation of evidence (please no emails about how to spell “spoil,” the word really is spoliation) and if you get caught doing it, well, just take out your wallet and start spilling the Benjamins. Of course, if you plan on never suing anyone, getting sued, thinking of getting sued or don’t consider there’s the slightest chance you may end up in a courtroom wondering why Juror #6 is giving you the stink eye, then read no more.

               But talk to the president of Residential Funding Corporation who jeopardized a favorable $94 million judgment a few years ago after they couldn’t produce emails requested, properly, by the other side and the judge rightly told the jury they could infer that the emails would have been adverse to Residential’s interests. Stopped yawning yet?

               Or ask UBS Warburg, LLC how a $29 million employment discrimination verdict tastes after the judge instructed the jury they could infer bad intentions when UBS cavalierly failed to produce emails that should have and could have been produced.

               Yeah, oops. Again.

               The lesson is that if you even sniff legal trouble on the horizon and hit the delete button, even accidentally, you’re as good as cooked. Like other systems you use to make sure your machines stay greased and your widgets keep flying off the loading dock, this is simply a must do. A “Duh!”

               Bragging to your golf foursome about your organized, comprehensive and monitored electronic document retention system may get you laughed off the first tee but being able to prove it to that juror with the stink eye may just buy you greens fees for life.

               Sure, you could rationalize and say if it can happen to the Governor it can happen to anyone. But don’t you want to set your bar a little higher than that?

               All the best.

               Bill Yanger

Trumping Triple XXX: If It’s Good Enough For Brad Pitt, It’s Good Enough For Small Biz

In Uncategorized on September 10, 2011 at 11:46 am

               Hey, to each his own right? Well, it may not be quite that simple.

               Look, some like it, some abhor the stuff. Some spend insane dollars on it. Others rally, demonstrate and engage in pitch battles against its very existence. The age-old struggle between Free Will and Morality. One cannot account for taste.

               Growl and accuse all you want, folks. You can preach and scream and detest until you’re blue in the face but adult oriented material,“porn” or “smut” if you will, is a multi-billion dollar business and its seven-inch stilettos are firmly planted in the business landscape. You can holier-than-thou from the closest high horse but that “ca-ching ca-ching” you hear is not Pink Floyd’s “Money” playing in the background. It’s the sound of porn execs counting the booty, so to speak, from their NEXT BIG THING:

               “.xxx” as in “.com” or “.net” or “.gov” and the like.

               Yep, as of December 6, 2011 “.xxx” will be available to the adult entertainment industry as its very own domain. Part effort to clearly identify potentially offensive (depending upon your perspective, of course) material and, frankly, part effort to open what is essentially an unclaimed frontier to the equivalent of a land-rush, with hordes of “pioneers” circling their cyber wagons and wrestling to stake claims to any conceivable web address and trademarked identity. Go West young man, sort of.

               I think I just heard one of you say, “So what? I don’t do porn, don’t care who does it, just leave me alone and I’ll leave them alone.” Okay, fair enough and probably a pervasive sentiment. Again, to each his own, laissez faire and all that.

               But when you get that call from your Big Customer wondering how they found their way to www.”yourcompany”.xxx  when all they wanted to do was place another month’s order for widgets from your website’s shopping cart, that “So What?” will likely become “What the hell?!!” And so much for laissez faire.

               Many celebrities are taking no chances, as you may expect. As you can see HERE, Barack Obama, Brad Pitt, Donald Trump (really? talk about oxymorons…just saying) and even the estates of Elvis and Marilyn Monroe have taken steps to protect their brand from the .xxx hordes.

               Sure, Brad Pitt can afford to battle these cyber squatters but, you ask, what can a small business owner possibly do about it? First, take a look at this nifty little video that explains in simple yet useful terms the timing and the mechanics by which you can opt-out of the .xxx land rush:

               Second, click HERE and take a minute to educate yourself. You have time – not much but some time – to effectively block your qualified trademark and domain from use by porn-squatters. It’s a few hundred bucks. Just do it.

               Of course, to be fair, if you qualify and actually want to use the .xxx domain and incorporate it into that aggressive marketing plan you’re getting ready to launch, by all means, you have every right to claim it through the same process. You’ll actually have first dibs on your registered name!

               But, for the rest of us, about that “to each his own” thing. Wonderful in concept but in this case if you don’t claim it you won’t own it. And someone else eventually will.

               All the best.

               Bill Yanger

On Governor Delete, The Stink Eye and Raising Your Bar

In Uncategorized on August 20, 2011 at 9:54 am

               You may have heard that Gov. Rick Scott’s transition team was recently found to have brazenly trashed…or, err…mistakenly deleted a trove of public records, actually email communications.

               Oops.

               The emails likely detailed much of the team’s discussion of hiring decisions, Cabinet vetting and policy development during that crucial period between his election and unlocking the front door of the Governor’s Mansion. We’re talking 40 to 50 email accounts. That’s accounts, not individual emails. Easily thousands of pertinent, perhaps sensitive, communications governed by Florida’s public records law.

               Oh, the fun we could have ranting about conspiracy theories, pervasive hubris and a continuing pattern of disdain for the rule of law and the sun shining on their cozy cabal. “Public record laws? Pfffft!”

               But that’s not where we’re headed today. Giving the bumblers the benefit of the doubt, there are lessons in the good Governor’s stumble. I mean, think about it. If this could happen to an apparently sophisticated staff of nationally credentialed professionals who retained an assumedly seasoned and competent private vendor to handle email organization and retention, what does that say about you and your company?

               The whole “back-up” thing is important, sure. We’ve all lived through the gut wrenching realization that our computer has puked, sending us into an apoplectic daze while the IT X-Men copter in to the rescue. But there is a collateral legal issue perhaps equally important and more to the point of the stink Gov. Scott has found himself in over this issue:

               Um…email retention policies.

               Wait, wait! Don’t leave, please. I know it ain’t sexy but I assure you it is necessary. Like a Level One Trauma center, you don’t need it until you need it, and then, thank the lord, you’ve got it nearby.

               See, there is this thing called spoliation of evidence (please no emails about how to spell “spoil,” the word really is spoliation) and if you get caught doing it, well, just take out your wallet and start spilling the Benjamins. Of course, if you plan on never suing anyone, getting sued, thinking of getting sued or don’t consider there’s the slightest chance you may end up in a courtroom wondering why Juror #6 is giving you the stink eye, then read no more.

               But talk to the president of Residential Funding Corporation who jeopardized a favorable $94 million judgment a few years ago after they couldn’t produce emails requested, properly, by the other side and the judge rightly told the jury they could infer that the emails would have been adverse to Residential’s interests. Stopped yawning yet?

               Or ask UBS Warburg, LLC how a $29 million employment discrimination verdict tastes after the judge instructed the jury they could infer bad intentions when UBS cavalierly failed to produce emails that should have and could have been produced.

               Yeah, oops. Again.

               The lesson is that if you even sniff legal trouble on the horizon and hit the delete button, even accidentally, you’re as good as cooked. Like other systems you use to make sure your machines stay greased and your widgets keep flying off the loading dock, this is simply a must do. A “Duh!”

               Bragging to your golf foursome about your organized, comprehensive and monitored electronic document retention system may get you laughed off the first tee but being able to prove it to that juror with the stink eye may just buy you greens fees for life.

               Sure, you could rationalize and say if it can happen to the Governor it can happen to anyone. But don’t you want to set your bar a little higher than that?

               All the best.

               Bill Yanger

Not In My World

In Uncategorized on August 2, 2011 at 10:33 am

               So, yippee and hurrah! Congress gets its deal done.

              

               The House passed the debt ceiling bill, or whatever one chooses to label it, yesterday and the Senate will do so today. And how proud they must be. It reminds me of a harsh but particularly prescient quote from writer and tweaker of the high and mighty Mary McCarthy back in the 50’s:

               “The American, if he has a spark of national feeling, will be humiliated by the very prospect of a foreigner’s visit to Congress—these, for the most part, illiterate hacks whose fancy vests are spotted with gravy, and whose speeches, hypocritical, unctuous, and slovenly, are spotted also with the gravy of political patronage, these persons are a reflection on the democratic process rather than of it; they expose it in its process rather than of it; they expose it in its underwear.”

               Okay, so I doubt one has much of a shot at getting elected to Congress without being able to read and write but beyond that, McCarthy’s got a point. Like the sagging reality of a nude beach, the view is often unpleasant. And for all the tea-bagging hysteria and chagrined progressive egos one thing seems to be lost in the hoopla of this “deal.” There is no real agreement here, no meeting of the minds, no contract.

               They have done nothing more than agree to agree. No wait, actually they have only agreed to take a stab at agreeing by passing the buck to a “commission” to hammer out details one suspects will be slippery at best. This is less governance than it is sanctioned procrastination. And in my world, the real everyday world, the world of business contract language that necessarily binds the parties to specific action and defines the consequences of failure or breach or inaction, slippery procrastination just don’t cut it, Brother. If you and your company are able to pawn off your tough and gritty decisions to some hazy “commission” and still turn a profit, more power to you. I suspect that is not the case.

               So, do they have a deal? Yeah, maybe. But an agreement?

               Not in my world.

               All the best.

               Bill Yanger

The Bling’s Cool, Sure, But They All Got That Zing

In Uncategorized on July 21, 2011 at 5:00 pm

                A few years back I was quoted in a local paper as professing that entertainment law is just “contract law with a zing.” And it seemed true enough at the time.

                Spending the last few days with my Film Florida friends and colleagues and buffing my many rough edges in anticipation of the glitz and red carpet bling of tonight’s Legends Awards in Boca Raton, I can say that, yes, the zing is still there. Heck, we’ll be celebrating the career of Burt Reynolds, hero of mine since he saved those city slickers on the Cahulawassee River in Deliverance way back in 1972 (although I was a bit perturbed when he hooked up with my high school dream crush Sally Field in those Smokey and the Bandit movies). That’s zing, for sure.

                Watching a young creative visionary wrangle his or her independent film project or television pilot from concept to release and distribution is about as professionally fulfilling as it gets. Chasing, and catching, music business con-men who prey on the dreams of child performers and their families provide particularly gratifying satisfaction. Creatives are passionate folks, fun to advise and counsel. I appreciate their willingness to put up with the stodgy gray-haired lawyer in the room.

                But, you know what? The entertainment stuff is only part of what I do. As I sat listening to a retired couple replay for the horrors of a recent flood of sewage in their beach getaway condo and the incredible failures of those who could have prevented the damage with reasonable diligence, I realized these folks are just as passionate as any musician or television producer I have ever represented. And the lady who borrowed money from her employer to care for her sick husband only to be sued when the company was sold to a new and less compassionate owner? Her story of sacrifices and setbacks in the face of overwhelming odds itself seems worthy of a Hollywood script. Or the dashing young Army private I told you about last week, the one who has a dream of building his own clothing company. His story has drama, anticipated conflict, tough odds. Yes, it has zing.

                Time and perspective have finally impressed upon me that the bling is cool and all, I’ll take it, but the “zing” is personal to each and every client.  And that makes this job very very cool. So to all my clients, the writers and the plumbers, the producers and the convenience store owners, the landscapers and the film directors, I say thanks for sharing your zing and trusting it with me.

               All the best.

               Bill Yanger

Before The Dam Breaks…

In Uncategorized on July 21, 2011 at 1:24 pm

               I spent some time on the phone today with an old client, let’s call him Mike, who is considering going into business with his son. Mike is one of the smartest guys I know. He told me so. He can ask more questions in 20 minutes than anyone I know. Insightful questions with complex answers. Elementary questions with obvious answers. Doesn’t matter, he asks because he wants to know. No problem here, I say, ask away.

              Now, Mike has run a successful business of his own for 25 years. He’s been through the wars – regulation, litigation, sky-high sales numbers in good times and scary low revenues in bad times. He’s savvy, flexible and, significantly, he understands that he does not have all the answers, in spite of his experience. He plans ahead, expecting sunshine while planning for thunder storms, so to speak. Mike runs his business prophylactically, that is to say, he takes affirmative steps to prevent problems before they become problems.

               Oh, how I wish more clients were like Mike. Don’t get me wrong. If a client has a problem, say a lawsuit or a bad contract or a souring relationship with a business partner, I’m happy to discuss necessary action, available alternatives and possible avenues for resolution. That’s my job essentially. But I’d much rather be spending that time and energy and, frankly, his money creating protections and shields from potential problems ahead of time.

               I suppose what I am trying to convey is this: we are just as good at structuring plans and processes designed to prevent a crisis as we are at steering you through one after it happens. Sit down with us before the wall cracks or the dam breaks. You may find you’ll sleep better at night. I know Mike does. He told me so.

              All the best.

              Bill Yanger