Blog – The Swenson Law Firm – Providing Guidance and Protection to California Businesses and Employers

Why Have The Swenson Law Firm Draft Your Estate Plan?

Sun, 26 Apr 2026 19:00:00 GMT

Because a Generic Template Can't Protect What Matters Most

Estate planning is a critical step in ensuring your assets are protected and your wishes are carried out after you pass away. While it may be tempting to try to create your own estate plan or use a generic online template, there are many compelling reasons to have an experienced law firm like The Swenson Law Firm draft your estate plan.

Expertise and Experience Estate planning laws are complex and vary by state. Our legal team has the knowledge and experience to navigate these complexities and create a plan that meets your unique needs and goals.

Personalized Attention We take the time to get to know you and your family, understand your assets and concerns, and tailor your estate plan accordingly.

Avoid Costly Mistakes A poorly drafted estate plan can lead to costly mistakes, disputes, and delays in the distribution of your assets. Our legal team can help you avoid these pitfalls and ensure your plan is legally sound.

Peace of Mind Knowing that your estate plan is in order can provide you and your loved ones with peace of mind. You can rest assured that your wishes will be carried out and your family will be taken care of.

Don't leave your estate planning to chance. Contact The Swenson Law Firm today to schedule a consultation and learn how we can help you create a comprehensive estate plan that protects your legacy.

Administering a Trust in California

Wed, 10 Sep 2025 18:06:13 GMT

Key Considerations when Administering a CA Trust

Administering a trust in California involves a complex set of legal and financial responsibilities. Trustees must navigate various requirements and potential challenges to ensure the trust is managed effectively and in accordance with the grantor's wishes. Below are some key considerations for trust administration in California.

Understanding Trustee Duties and Responsibilities

Trustees have a fiduciary duty to act in the best interests of the trust beneficiaries. This includes:

Managing trust assets prudently
Making informed investment decisions
Distributing trust assets according to the trust terms
Keeping accurate records and providing regular accountings
Communicating effectively with beneficiaries
Resolving disputes among beneficiaries

Navigating California's Legal and Regulatory Landscape

California has specific laws and regulations governing trust administration. Trustees must be familiar with these requirements, including:

The California Probate Code
The California Uniform Principal and Income Act
Tax laws and filing requirements

Addressing Common Challenges in Trust Administration

Trust administration can be complex, and trustees may encounter various challenges, such as:

Interpreting ambiguous trust provisions
Dealing with difficult beneficiaries
Managing complex assets
Navigating tax implications
Resolving disputes

Seeking Professional Guidance

Given the complexities of trust administration, seeking professional guidance from an experienced attorney or financial advisor is highly recommended. These professionals can provide valuable assistance with:

Understanding trustee duties and responsibilities
Navigating legal and regulatory requirements
Resolving disputes
Ensuring compliance with the trust terms

Administering a trust in California requires a thorough understanding of legal and financial principles, as well as a commitment to fulfilling fiduciary duties. By seeking professional guidance and proactively addressing potential challenges, trustees can effectively manage the trust and protect the interests of the beneficiaries.

Disclaimer: This blog post is for informational purposes only and does not constitute legal advice. It is essential to consult with a qualified attorney for guidance on specific trust administration matters.

Selling Property Held in a Trust

Tue, 29 Oct 2024 19:48:44 GMT

Selling Property in a Trust: What you need to know

Selling property that is held in a trust can be a complex process, but with the right guidance, it can be done smoothly and efficiently. Whether you're a trustee or a beneficiary, understanding the key steps and considerations involved is crucial.

Understanding the Trustee's Role

The trustee has the fiduciary responsibility to manage and sell trust property in accordance with the terms of the trust and in the best interests of the beneficiaries. This includes:

Reviewing the Trust Documents: The trustee must carefully review the trust documents to understand any specific instructions or restrictions regarding the sale of the property.
Obtaining Necessary Approvals: Depending on the terms of the trust, the trustee may need to obtain the consent of beneficiaries or court approval before selling the property.
Preparing the Property for Sale: The trustee should take steps to ensure the property is in good condition and marketable, such as making necessary repairs or improvements.
Marketing the Property: The trustee should effectively market the property to attract potential buyers.
Negotiating the Sale: The trustee should negotiate the terms of the sale, including the price, closing date, and any contingencies.
Closing the Sale: The trustee should oversee the closing process, ensuring all necessary documents are executed and funds are distributed appropriately.

Tax Considerations

Selling property in a trust can have significant tax implications. It's important to consult with a tax professional to understand the potential tax consequences and ensure compliance with all applicable laws.

Potential Challenges

Selling property in a trust can be challenging, especially if there are multiple beneficiaries with differing opinions or if the property is complex or difficult to sell. In such cases, seeking professional guidance from an experienced attorney and real estate agent is highly recommended.

Conclusion

Selling property in a trust requires careful planning and execution. By understanding the trustee's role, the legal and tax implications, and potential challenges, you can navigate the process with confidence and ensure the best possible outcome for all parties involved. Remember, seeking professional guidance is always a wise decision when dealing with complex trust matters. Contact our office to schedule a consultation .

Letters Testamentary

erica@swensonlawfirm.com (Erica Swenson) — Fri, 19 Apr 2024 20:14:54 GMT

Many people first hear of Letters Testamentary or Letters of Administration when they attempt to sell a home or gain access to a bank account after a family member or loved one passes away. Typically, they are given a list of required documents and Letters Testamentary is one of them.

If this has happened to you, you are not alone in asking what Letters Testamentary are and how to acquire them.

In California, Letters Testamentary are legal documents issued by the court to a personal representative or executor named in a deceased person's will. These Letters authorize the individual to act on behalf of the deceased person's estate and carry out the instructions outlined in the will.

In summary, Letters Testamentary in California are essential legal documents that grant an executor the authority to manage a deceased person's estate. By obtaining these Letters from the probate court, the executor can fulfill their duties, settle the deceased person's affairs, and distribute assets to the rightful beneficiaries. Executors should seek legal assistance to navigate the probate process effectively and ensure that the estate is administered in compliance with the law.

When Should I Change My Will and Trust?

Fri, 03 Apr 2020 22:46:00 GMT

You may ask, “When should I change my will and trust?” Life changes. A regular review of your Estate Plan ensures your current wishes reflect those changes.

If you answer “yes” to any of these questions, your Estate Plan may need to change.

Do you have a properly signed will, trust, and Powers of Attorney for Healthcare and Financial?
Did you get married?
Did you get divorced?
Are there new children, stepchildren , or grandchildren in your family?
Is your home deeded into your trust?
Did you purchase real estate?
Do you have family heirlooms or special items, like jewelry and artwork that you want to give away?
Do you want to give or take away someone’s rights to live in your home after you die?
Has anyone named in your Estate Plan pass away, become ill, or get divorced?
Do you want to change your Trustee or Executor?
Are you still comfortable with the person you chose to make healthcare and financial decisions if you are not able?
Is someone receiving special benefits that was not previously?
Have you changed your mind on the appointed guardian for your children?
Are there family disagreements?
Has your net worth significantly increased or decreased?
Do you have a new business?
Are your bank accounts and other financial accounts in your trust?
Was your will or trust signed before 2013?
Do you have a child that is turning 18?

The Swenson Law Firm offers free Estate Planning Consultations. We can review your current plan and let you know if there are any changes to your will and trust. We offer telephone and video consultations. Contact our office at 916-333-0833.

What to Expect at an Estate Planning Consultation

Mon, 30 Dec 2019 01:38:00 GMT

Meeting with an attorney to discuss your Estate Plan is not an every day affair. Because of this, you may not know what to expect at an Estate Planning consultation. All law offices have different procedures. However, this is what to expect from us at The Swenson Law Firm:

Contact our office to schedule your consultation.
We will send you a worksheet to fill out prior to the appointment along with more information to prepare you for your consultation meeting.
Return the worksheet prior to your consultation.
During the consultation you will meet with the Attorney to discuss your goals and desires.
An Attorney Engagement Agreement is sent to you to review outside of the office.
Return the Attorney Engagement Agreement and any requested deposit and we will get started on your Estate Plan.
Feel good knowing that you are protecting and planning for your family.

Additional items to keep in mind:

If you are planning to have an Estate Plan together with your spouse, it is best to have both spouses at the initial meeting.
We have the capability to meet via video conferencing.
It is our policy to not accept payment or sign Attorney Engagement Agreements during your Estate Planning Consultation. We prefer you to think it over outside of the office prior to signing up.
We love teaching about how Estate Plans work for you and your family.

To schedule your Estate Planning Consultation, Contact us at 916-333-0833 or send us a message .

How Do I Get Letters of Administration?

Fri, 04 Oct 2019 21:47:00 GMT

Getting Letters of Administration is a common request when taking care of someone’s estate. A bank may have told you that you need “Letters of Administration” to gain access to an account. This is common, even when you have the will and you are named as the executor. Or you may run into problems when selling a piece of property as the executor . A title company may request “Letters of Administration”. Surprisingly, it’s common for creditors to also request Letters before you pay bills on behalf of someone who has died.

What are Letters of Administration and how do I get them?

Letters of Administration are part of a court order that allows an individual to administer an estate. Letters are acquired by petitioning the court for them . An Attorney familiar with the Probate Process can assist you.

Is there a way around Getting Letters of Administration?

If the decedent had a trust and had their accounts, real estate, and other assets titled into the name of the trust, you can usually administer the trust without going through probate. If there was not a trust and only a will, or no will at all, an attorney would look at your individual situation to see what your options are. Some of the questions the Attorney may have for you are the following:

An Attorney familiar with Probate should be able to give you options on how to transfer property from the decedent to the heirs. The Swenson Law Firm offers free consultations for Probate matters. Call 916-333-0833 to schedule an appointment or click here to send a message.

First Steps in Probate

Fri, 18 Jan 2019 23:17:00 GMT

You may have found that you are in need of a Probate Attorney following the death of a family member or close friend. A Probate Attorney can help you from the very beginning in knowing what the first steps are and guiding you through the court process.

It is helpful to do the following prior to meeting with a Probate Attorney:

Look for a will or a trust. This will assist the Attorney in knowing how to proceed with the Probate and if Probate is necessary. Additionally, the Will or Health Care Documents with the Will may contain funeral and burial instructions, which is an immediate need.
Order Certified Copies of the Death Certificate. Several copies of the death certificate are needed and it is good to have them available. In general, five copies should be sufficient.If additional copies of the death certificate are needed at a later date, they can be received through the County Recorder’s office in the county in which the death occurred. Most mortuaries will obtain certified copies.
Determine what Property the Decedent Owned. To begin, list what real property was owned. Most Probate Attorneys will have a worksheet they can send to you prior to your appointment, which will assist you in listing the assets. A Probate Attorney can review the list of property and determine if probate is necessary.

The Swenson Law Firm offers Probate Consultations free of charge. Contact our office at 916-333-0833 to schedule an appointment or contact us here .

Changing Ownership of a Home After a Death

Wed, 16 Jan 2019 01:13:00 GMT

Several factors go into changing the ownership of a home after a death.

Changing Ownership of a Home when there is a Trust

When there is a trust that has been drafted properly and the home has been funded into the trust, the transfer can usually be done simply and quickly. Depending on how the home is currently titled, an Affidavit and new Grant Deed would be filed with the County Recorder’s office. It is important that a professional assists you with this in order to have the home titled correctly and potentially keep a lower tax rate, such as with California’s Prop 13.

Changing Ownership of a Home when there is a Will and Not Held in Joint Tenancy

If there is a will and not a trust and the home is not held in Joint Tenancy, the transfer of the home would be subject to Probate. The will is submitted to the court when probate is initiated. A Probate Attorney can assist you with this filing.

Changing Ownership of a Home when there is a Will and Held in Joint Tenancy

If the property is held in Joint Tenancy, an affidavit and Grant Deed is usually filed with the County Recorder’s office. This avoids the formal process of probate, but can also have some unexpected consequences.

Changing Ownership of a Home when there is No Will and No Trust

If there is not a will or a trust, changing the ownership of the Home, may need to go through Probate depending on how the home was titled at the time of death.

At The Swenson Law Firm, we can assist you in knowing what the next steps are to transfer ownership of a home after a death, as each circumstance can be different depending on if there is a will or a trust and how it is written and how property is titled.

Contact our office at 916-333-0833 to schedule an appointment. Or send us a message.

First Steps After The Death of a Loved One

Fri, 05 Oct 2018 22:08:00 GMT

We have a checklist with 21 items listed for items to consider doing during the first month. Some of them are time sensitive. If you would like to schedule an appointment to meet with our Attorney to review the next steps, contact our office at 916-333-0833.

The Swenson Law Firm assists clients in Probate and Estate Administration Matters in Northern California. Our vision is to make every person who walks into our door to feel better. We so this by replacing uncertainty with knowledge and fear with hope.

3 Reasons You Want to Avoid Probate

Fri, 07 Sep 2018 17:49:00 GMT

When you pass away, your family may need to visit a probate court in order to claim their inheritance. Although having a will is a good basic form of planning, a will does not avoid probate. Instead, a will simply lets you inform the probate court of your wishes – your family still has to go through the probate process to make those wishes legal.

Here are 3 key reasons why you want to avoid probate, if at all possible.

It’s all public record. Almost everything that goes through the courts, including probate, becomes public record. This means when your estate goes through probate, all associated family and financial information becomes accessible to anyone who wants to see it. This doesn’t necessarily mean account numbers and social security numbers, since the courts have at least taken some steps to reduce the risk of identity theft. But, what it does mean is that the value of your assets, creditor claims, the identities of your beneficiaries, and even any family disagreements that affect the distribution of your estate will be available, often only a click away because many courts have moved to online systems. Most people prefer to keep this type of information private, and the best way to ensure discreteness is to keep your estate out of probate.

2. It can be expensive. Due to court costs, attorney fees, executor fees, and other related expenses, the price tag for probate can easily reach into the thousands of dollars, even for small or “simple” estates. These costs can easily skyrocket into the tens of thousands or more if family disputes or creditor claims arise during the process. This money from your estate should be going to your beneficiaries, but if it goes through probate, a significant portion could go to the courts, creditors, and legal fees, instead.

3. It is a lengthy process. While the time frame for probating an estate can vary widely from state to state and by the size of the estate itself, probate is not generally a quick process. It’s not unusual for estates, even seemingly simple or small ones, to be held up in probate for 9 months to a year or more, during which time your beneficiaries may not have easy access to funds or assets. This delay can be especially difficult on family members going through a hardship who might benefit from a faster, simpler process, such as the living trust administration process. Bypassing probate can significantly speed the disbursement of assets, so beneficiaries can benefit sooner from their inheritance.

If your assets are located in multiple states, the probate process must be repeated in each state in which you hold property . This repetition can cost your family even more time and money. The good news is that with proper trust-centered estate planning, you can avoid probate for your estate, simplify the transfer of your financial legacy, and provide lifelong asset and tax protection to your family. To learn more, call us for an appointment. One of our experienced attorneys will be happy to discuss your options.

5 Steps for New Parents to Know About Wills

Fri, 07 Sep 2018 16:58:00 GMT

For a new family, you may decide to begin with a simple will. However, to be fully protected, you probably need more. To learn more about how estate planning documents, such as wills and trusts can help you, schedule a free consultation with our attorney. Contact us today to talk about your options. Our hope is to bring peace to your family.

The post 5 Steps for New Parents to Know About Wills appeared first on The Swenson Law Firm - Providing Guidance and Protection to California Businesses and Employers .

Legal Considerations When Getting Your New College Student Ready to Go

Tue, 17 Jul 2018 00:44:00 GMT

If you are preparing to send your son or daughter off to college, you may be wondering how their first semester of school will go. This is an exciting new chapter in your family’s life. The last thing you may be thinking about is estate planning for your college-aged child. While your child may not have any assets yet, once he or she turns 18, your child is considered an adult in the eyes of the law. Before your kids go away, you may want to talk with your child about some estate planning issues.

Basic, Yet Crucial, Estate Planning Documents

Before your child is college bound, you should consider completing the following basic estate planning documents:

Prepare Ahead of Time

The Swenson Law Firm- a Business and Estate Planning Law Firm

Call to schedule a consultation916-333-0833

4 Tips For Every New Homeowner

Mon, 11 Jun 2018 18:07:00 GMT

Lastly, now that you have a home and homeowner’s insurance, call your insurance agent to make sure that you are getting all of the discounts that you are entitled to. Many insurance companies will offer discounts when you bundle services.

Get Ready for Your Summer Plans

Fri, 27 Apr 2018 19:25:00 GMT

4 Things to consider adding to your checklist:

Guardian Nomination

If you don’t have this completed yet, now is the time. Without a guardian nomination, the court determines who will raise your children and it may not be the person that you would choose on your own.

Beneficiaries

Check to make sure that your beneficiary designations are up to date. Take some time to contact your Insurance Agent or Financial Planner and make sure that the beneficiary designations are not out of date.

If you have a trust, make sure that your trust is properly funded. If you have opened up new bank accounts, investment accounts, or real estate, be sure to properly fund your trust. Contact your Estate Planning Attorney to answer questions about funding your trust. Additionally, make sure that your designations in your trust are still current.

Powers of Attorney

Getting sick or injured while traveling is stressful enough without having Powers of Attorney in place. Knowing that your care will be handled as you wish can cut down on worries that you may have of being away from home.

Signatures

The Swenson Law Firm assists individuals and families in drafting Estate Planning Documents, such as Wills, Trusts, and Powers of Attorney. Estate Planning Consultations are complimentary. Call 916-333-0833 to schedule your appointment.

Exciting Times at The Swenson Law Firm

Thu, 15 Mar 2018 21:14:00 GMT

There is a lot to celebrate at The Swenson Law Firm. March marks their 5 year anniversary and they received the Best Legal Services in Orangevale over the weekend- that is two years in a row!

Samuel Swenson came from a family of entrepreneurs. Samuel previously worked in larger law firms. He enjoyed the work, however there was very little interaction with clients. He wanted to be able to see the faces and meet the people that he worked for. After planning and preparing the doors to The Swenson Law Firm opened on March 1, 2013 in Orangevale, CA. Now Samuel gets to meet regularly with clients throughout his week. His practice is focused on Business and Estate Planning Law.

Samuel is married to Erica Swenson. Erica manages the office and manages Samuel’s schedule. She enjoys working with her best friend and husband.

Running your own business definitely takes a lot of work, but they have found so many blessings- both expected and unexpected. Here are their favorites:

They are excited to continue serving Orangevale and the surrounding communities of Fair Oaks, Roseville, Folsom, and Citrus Heights.

See what people are saying about The Swenson Law Firm on Yelp.

How to Share Family History and Heirlooms with Your Estate Plan

Tue, 21 Nov 2017 22:12:00 GMT

As you share these stories, you may decide that you would like to give a special item to one of your loved ones. Heirlooms are a tangible way of connecting with ancestors. To pass on your heirlooms, use a personal property memorandum in your estate plan.

What is a Personal Property Memorandum?

In California, a Personal Property Memorandum is a document that may be included in your Estate Plan. The Memorandum should be referenced in your Will or Living Trust. It allows you to list which personal property items you wish to leave to whom. Unlike your Will and Trust, you can update your Personal Property Memorandum as you see fit. You don’t have to visit your Estate Planning Attorney each time you update it. The Personal Property Memorandum will assist your Executor in conjunction with your Will and Trust in knowing how to distribute specific items to your beneficiaries (heirs).

Can I Change or Update My Personal Property Memorandum ?

You will likely want to update your Personal Property Memorandum more often than your Will or Trust. Personal belongings tend to change more often than other assets.

What Can Be Included in a Personal Property Memorandum?

These items are commonly included in a Personal Property Memorandum:

However, be aware that not all assets can be distributed using a Personal Property Memorandum. If you have questions about what can and can not be included, contact your Estate Planning Attorney.

What Can Not Be Included in a Personal Property Memorandum?

Examples of Items not to be included in your Personal Property Memorandum are the following:

These assets require a Trust or a Will if you would like to choose who they are passed on to. Check with an Estate Planning Attorney, if you have questions about how to pass on your assets.

Why Should I Put My Wishes in Writing?

Verbal wishes can cause family disharmony after you are gone. Loved ones grieve in differing ways, and it is common for family members to want to cling to your assets as a way to connect with you. It is not uncommon to have families torn apart as they disagree on what the wishes and desires were of their family member that has passed on. This also puts the Executor of your Estate in a tough situation, as there were not clear instructions on how to pass on your possessions. When your wishes are in writing it is clear to the Executor and to all involved how to distribute your items.

You may want to consider writing down stories that go along with your heirlooms. These stories will help future generations to connect with their ancestors. It also helps give them strength and identity. The New York Times published an article entitled, “The Stories that Bind Us”, in which it was stated that, “The more children knew about their family’s history, the stronger their sense of control over their lives, the higher their self-esteem and the more successfully they believed their families functioned.”

The Swenson Law Firm offers Free Estate Planning Consultations. Call 916-333-0833 to schedule an appointment.

Don’t Put Off Till Tomorrow What You Can Do Today

Wed, 06 Sep 2017 20:47:00 GMT

There’s no perfect time to broach the subject of estate planning with your family. We all know that everyone passes away eventually, but many of us want to forget that reality.

Family Discussion

When faced with the decision between taking initiative to start a family discussion about estate planning or putting it off, most people are more inclined to the latter. Unappealing as it may seem, the perfect time to schedule your family meeting is now.

Procrastination is often the biggest obstacle to successful estate planning. It may have been a while since your plan was updated or reviewed. You may have never discussed it with family.

Contrary to what you might expect, the best way to begin talking with your family, usually isn’t to talk about specific documents like wills, trusts, and powers of attorney. Rather, it’s to have a conversation with your family about goals, plans, and hopes for the future.

Short Term and Long Term Benefits

In the short term, you can meaningfully connect with your family and express the care for them that your estate plan represents. In the long term, you can sleep more soundly knowing your family will be prepared to know you have a plan as well as the reasons you designed it the way you did.

You should begin with meeting with your estate planning attorney to get your plan up to date. Then if appropriate in your situation, you may want to have a discussion about your plan with your family. It’s much better to start this discussion while everyone is still here (and doing well) rather than waiting until after a loss or significant medical issue.

Sam Swenson is the Attorney at The Swenson Law Firm in Orangevale. He assists clients in passing along their legacy through Estate Planning. Contact his office at 916-333-0833 to sign up for a seminar or consultation.

Legal Heirs in California for Married Couples

Thu, 20 Jul 2017 16:26:00 GMT

If you do not have a will or a trust, you are leaving it to state law to determine who your legal heirs are. Dying without a will or trust, is called dying “intestate”. Heirs are determined by succession statutes that are already in place. It is important to consult with an Estate Planning and Probate attorney regarding your individual situation. Let’s look at two situations.

Married and Spouse Has No Living Relatives- Legal Heirs in California

With California being a community property state, this is reflected in the California succession statues. The surviving spouse receives all of the community property and quasi-community property owned by both spouses. If the deceased spouse has no other immediate family members, the surviving spouse inherits all of the separate or personal property of the deceased spouse’s estate. It’s important to meet with an Estate Planning Attorney to determine who your family members are.

Married and Spouse Has Living Relatives- Legal Heirs in California

If your spouse dies and has a surviving relative, namely surviving:

your property is distributed among your surviving spouse and heirs. The amounts are determined by who has survived the spouse that has passed away. It is important to remember that if you die intestate or without a will or a trust, it is up to the judge to determine who are the rightful heirs to your estate. The judges determine this by using California succession statues. It is important to remember that the judges are to follow these statutes and don’t look at whether the surviving heirs got along well with each other. A surviving heir, is a surviving heir even if they have not spoken in twenty years or if they are irresponsible. Create a will and a trust with an experienced Estate Planning Attorney to control who receives your assets.

At The Swenson Law Firm, we listen to our clients’ desires and goals and create their Estate Plan to reflect those desires and goals. Contact our office to schedule a free estate planning consultation.

Contact Us

Do My Spouse and Kids Inherit Everything When I Die?

Wed, 19 Jul 2017 01:18:00 GMT

Many people think that if they die while they are married, their spouse and kids automatically inherit everything. They are likely referring to the rules that apply to someone who has died without a will. In legal jargon, it is called “intestate”. Each state has differing intestate laws. The general rule is that your spouse will receive a portion, and the rest is divided among your heirs. We will look more closely at California Inheritance Laws in a future article.

You may think you have your loved ones covered, if part of your estate goes to your spouse and kids. However consider these four additional questions:

Who will be your kid s’ legal guardian?

If both of the parents of minor-aged children die intestate, the children are left without a legal guardian. Some people assume that godparents will automatically be able to step in. However, without this information being in an estate plan, a court will appoint someone to be the children’s guardian. The judge seeks to act in the children’s best interests and gathers information on the parents, the children, and the family circumstances. Remember that there are both sides of the family that will likely have a strong opinion on who the children should be raised by. The decision is up to the court. Unfortunately, the judge may not make the decision that you, as a parent, would have made.

What about your family structure?

When intestate laws were originally written, it was assumed that families consisted of a mother and a father and their natural born children. Many families today are not structured this way. In a recent analysis, there were found to be 10,276 differing family structures in the United States . This can get legally complicated and is out of your hands if you die intestate. With a will or trust, you control your estate and essentially eliminate the risk of your assets going to unintended family members…or ex-family members.

What happens if you are separated from your spouse?

If you are separated from your spouse when you die, state law decides what happens to your estate. The court can ignore your separation and consider you still legally married. If you are separated from your spouse, and your divorce is pending, you should talk with an estate planning attorney about your options.

Will creditors still be able to claim entitlement to your assets?

Dying without a will and trust provides no asset protection or preservation benefits. An estate’s assets are vulnerable to creditors, lawsuits, and others who may claim entitlement to the property. These claims would take precedence over the statutory requirements for inheritance over your family.

The best way to safeguard and pass along what you’ve worked so hard to build is to talk to an estate planning attorney. Take the first step in putting protections in place for you and your family by contacting our office. We understand the importance of sharing this important information, that is why we offer free Estate Planning Consultations.

The Swenson Law Firm is located in Northern California. 916-333-0833

Estate Planning is More Than Money Planning

Thu, 06 Jul 2017 20:12:00 GMT

Although money is often the main subject when talking about Estate Planning, family values, traditions and stories are also valuable. There are ways to build family values into your estate plan. It may be helpful to hold a family meeting in which you discuss your legacy and certain aspects of your estate plan.

Tell your Story

It may be helpful to tell your family the story of how you got to where you are today. This may help them to better respect and use their inheritance for good. You can tell your story using many different methods. Here are a few methods for sharing your story:

Along with sharing their story, some people opt to add their values into their financial Estate Plan. This can be done through Incentive Trusts, Educational Trusts, and Charitable Trusts.

The Swenson Law Firm is an Estate Planning Law Firm located in Orangevale, in Sacramento County. They listen to their client’s wishes and assist in creating an Estate Plan that helps to pass along their wishes. Contact The Swenson Law Firm to set up your free Estate Planning Consultation or to attend a seminar.

Will and Trust- Protecting Your Assets from Your Child’s Spouse

Thu, 08 Jun 2017 02:35:00 GMT

Most people create an estate plan because they want to make sure that their hard earned assets, family heirlooms, or businesses stay within the family. As your children grow, so does your family. Often adult children get married, adding more people into the family. We all hope that our children marry trustworthy and responsible adults, however that is not always the case. A common question is how does one protect their child’s inheritance from their spouse who may be untrustworthy or file for divorce? There are ways to structure your will and trust in a way that protects your assets for future generations. Here are a few ways:

Create a Trust

Three parties are involved in a trust:

When creating a trust, it is a good idea to choose an independent trustee. This allows for fewer arguments. As this gives less control to the beneficiary to receive more assets than what the trust documents state.

There are terms that you may be unfamiliar with when learning about wills, trusts and other estate planning documents. This Estate Planning glossary may assist you in clarifying some of those terms.

Prenuptial Agreements

Communicate Your Wishes

Outside of using estate planning legal tools, you may want to let you wishes be know to your family. You may want to have a family discussion about your estate planning intentions and the reasons for setting it up in this manner.

Use Clear Language

By using clear language in your estate plan you can avoid conclusion. It should be clear that the intent and purpose is of leave the inheritance to benefit descendants, and not the spouses. This further solidify your wishes. It is important for a legal professional to assist you in knowing how to properly document this in your estate planning documents.

Choose an Independent Trustee

Meet with an Estate Planning Professional

If you wish to make sure your descendants devise an estate plan that fulfills your wishes. Whether you don’t have an estate plan, or have one that is a few years old, sit down with an estate planning professional. This may help in making sure your goals are included in your estate planning documents. The Swenson Law Firm offers free estate planning consultations. We are located in Orangevale. Our clients are in Roseville, Citrus Heights, Folsom, Fair Oaks, Sacramento, El Dorado Hills and other locations.

We also offer Estate Planning Seminars. Check out our Events page to find out when our next seminar will be held.

The post Will and Trust- Protecting Your Assets from Your Child’s Spouse appeared first on The Swenson Law Firm - Providing Guidance and Protection to California Businesses and Employers .

Probate in Sacramento

Thu, 01 Jun 2017 17:44:00 GMT

The Probate Court oversees the probate process. In Sacramento County, the Probate Court is located on Power Inn Road . The probate court in Sacramento County and other counties divides the property of someone who is deceased. They oversee the distribution of assets and the payments of liabilities, which includes payment of debts and distribution of property to the beneficiaries.

In some circumstances, probate can be avoided. Some of those circumstances may be as follows:

If your loved one has died and you are not sure if you need to go through the probate process, contact an estate planning attorney that is familiar with probate law. It is a common belief that if someone dies with a will they will not need to go through probate. However, even with a will they will likely still go through the probate process if there was not a fully funded trust

If you would like more information on Probate in Sacramento County, contact our office to schedule an appointment at 916-333-0833. We offer free Probate consultations.

Also, see our article on immediate considerations after losing a loved one.

Joint Tenancy- The Wrong Way to Leave an Inheritance to Your Children

Fri, 28 Apr 2017 15:15:00 GMT

Estate Planning including wills, trusts, and other documents allows for you to leave an inheritance for your children. Unfortunately, there are many misconceptions on how that can be done. One of those ways is Joint Tenancy.

Creditors and Joint Tenancy

If you or your children have debts, the debtors can collect on the home. One may be punished for the other’s debts. There are situations that you may not foresee when setting up the joint tenancy, such as divorce, lawsuits, or bankruptcy. They can even force a sale on the home. Your child may end up paying for your debts with the property and not receiving her full inheritance. Unfortunately, sometimes a child dies before a parent and the parent is stuck paying for debts with the property.

Capital Gains Taxes and Joint Tenancy

Another downfall with relying on a joint tenancy to give your child an inheritance is capitol gains taxes. When you sell your property, you are taxed with a capitol gains tax. That means that you pay a tax on the increase in value from when you first acquired the property. Often times people hold on to property for several years without selling the property. With time the property usually significantly increases in value. You will then have to pay property gains tax on the amount that the property increased in value.

However, if the property had been put in a trust, the capitol gains taxes can be decreased significantly. This is because when property is put in a trust, the basis for your heirs is “stepped up” to it’s value at the date of your death. This makes it so that there is not such an increase in the value, which allows you not to have to pay as much in capitol gains taxes.

Contact our office to set up a consultation on how you can effectively leave an inheritance to your children and loved ones.

When Should I Update My Will or Trust?

Wed, 26 Apr 2017 23:56:00 GMT

Asking, “When should I update my will or trust?” is a very common question. Looking into this can help protect you, your family members and your assets. Some changes in Life Circumstances may give you cause to update your will, trust, and other estate planning documents. Some examples of these are: birth or adoption of a new family member, children growing up, marriage, divorce, death of a loved one, change in assets, owning a new business, or a move out of state or out of the country.

Birth or Adoption:

Depending on how your current trust is written, it may not automatically include your child. You may need to add the new child as a beneficiary.

Children Growing Up:

As children grow up, what you may have thought was good for them at the creation of your estate planning documents may have changed. If you created the estate plan while your children were young, circumstances have probably changed.

Marriage:

Divorce:

Divorce will likely cause you to want to update many items in your estate plan. Important documents to update with divorce are: insurance policies, retirement accounts, powers of attorney, existing health care and HIPAA authorizations.

Death:

If a person that was named in your will, trust, and/or estate plan has passed away, update your Estate Plan. Positions that are named in your estate plan are typically executors, designated health care power of attorney or general/financial power of attorney, guardians for your children, or beneficiaries.

Change in Assets:

You may want to update your estate plan if you have had a salary increase, received an inheritance or purchased a large asset.

Business Ownership:

If you have started or acquired a business since you wrote your estate planning documents, you will want to have your estate plan updated. See our blog post entitled, “Does your Company have an Exit Strategy? “.

Move to Another State or Country:

We are here to help protect you, your loved ones, and your assets. Contact our office to set up your estate planning consultation . We can review your will, trust and other estate planning documents.

If you don’t have a will, trust or estate plan read Top Ten Reasons You Need an Estate Plan .

Who Will Take Care of Me When I Am Not Able?

Thu, 02 Mar 2017 00:27:00 GMT

Trustee

A successor trustee will be responsible for making sure your wealth is passed on and managed in accordance with your wishes after your death or incapacity. It’s best to have a trusted person or financial institution carry out this vitally important role. The language in your trust should be as clear as possible so that your trustee knows exactly how to handle various situations that can arise in asset distribution.

Powers of Attorney-Agents

Your power of attorney is the document in your estate plan that appoints individuals to make decisions on your behalf if you become unable to do so yourself. Here are two common types to cover in your estate plan:

Financial Powers of Attorney

Financial powers of attorney grant individuals the ability to take financial actions on your behalf such as withdrawing money from your accounts to cover your costs.

Health Care Powers of Attorney

Health care powers of attorney cover a wide range of specific actions regarding an individual’s medical needs, such as making decisions about the types of care you receive.

Executor

Your executor is the person who will and carry out your wishes based on your last will and testament and if needed see your assets through probate. Being an executor can be hard work and may have court-ordered deadlines, so it’s crucial to pick someone you know will be up for the job.

Sam Swenson is an Estate Planning and Business Attorney in Orangevale. He assists individuals and businesses in protecting their assets. Contact our office at 916-333-0833 to set up your free Estate Planning Consultation.

Independent Contractor Agreement

Thu, 02 Feb 2017 12:38:00 GMT

When hiring an independent contractor, having an Independent Contractor Agreement is important. California has very stringent labor laws. First, it is important that you are correctly classifying someone as an Independent Contractor. Incorrectly classifying employees as independent contractors could subject the employer to liability under the Unfair Competition Law.

Who creates the agreement?

If you have consulted with a business attorney and determined that you are correctly classifying an Independent Contractor, it is important to have an Independent Contractor Agreement. Some Independent Contractors have their own agreement that they regularly use. Have the agreement reviewed for potential liabilities in order to make sure that both parties are protected. Most Independent Contractors will be open to revisions.

If there is not an Independent Contractor Agreement, you can have a business attorney draw one up for you. An agreement can limit liability, headaches, and expensive lawsuits.

What should be included in an Independent Contractor Agreement?

Here are some items should be identified in the agreement:

A written and signed Independent Contractor Agreement can limit your liability and protect your future. Handshake agreements do not hold up well when a problem arrises. The Swenson Law Firm is a Business and Estate Planning Law Firm in Sacramento County. They work to protect you, your business, and your loved ones. Call 916-333-0833 to set up a consultation or to sign up for an upcoming seminar.

The post Independent Contractor Agreement appeared first on The Swenson Law Firm - Providing Guidance and Protection to California Businesses and Employers .

Classification of Employees in California

Mon, 30 Jan 2017 20:07:00 GMT

Hiring new employees is an exciting time in your business. However, it usually raises questions related to classification of employees, especially in California. Wage and hour laws in California are some of the most stringent in the nation. Below is some basic information on the classification of employees. This is not an all-inclusive list.

Independent Contractor

Exempt Employee

Non-exempt Employee

Having an employee handbook is also very important in protecting your business.

California has very stringent employment laws that are actively enforced. Contact our office at 916-333-0833 to set up a consultation to discuss your employment concerns. Ask us about our seminars on Employment Issues for Business Owners.

The post Classification of Employees in California appeared first on The Swenson Law Firm - Providing Guidance and Protection to California Businesses and Employers .

Executor of a Will or An Estate: 3 Helpful Tips

Fri, 30 Dec 2016 18:48:00 GMT

As an executor of a Will or an Estate, you are responsible for assets getting to the correct beneficiaries. This is a large job, that usually comes while still in grieving. To accurately do the job, you need to be organized and pay attention to details. This job can easily become overwhelming. Here are three tips to assist you in your executor responsibilities.

Executor of a Will Tip 1: Get Organized

Create a file or a binder to keep track of estate planning documents. Include information such as:

Set up a meeting with an Estate Planning Attorney, as they can point you in the right direction. Even if you plan to tackle most or all of the responsibilities of an executor of a will, a meeting with an Estate Planning Attorney can help you to come up with a plan.

Executor of a Will Tip 2: Communicate

As an executor of a will or estate, you are a liaison between multiple parties related to the estate, such as:

Include in your file or binder an up-to-date list of everyone’s contact information. Keep a record of all work that you do as an executor, such as letters, emails, and notes from phone calls and the dates of those communications. You may not think that disputes will come up, but if they do, this should allow for disputes to be resolved more quickly. Also, when there is open communication, there is less risk for misunderstanding.

Executor of a Will Tip 3: Get Professional Help

In some states, it is a requirement for an executor of a will or estate to retain legal counsel. Along with the responsibility of being an executor, also comes liability. An Estate Planning Attorney can help you during this process, as well as leave you with peace of mind.

If you have been appointed as an executor of a will, we can provide skilled counsel to help you through the process. Contact us to help you draft your own estate plan , so your family can avoid the stress of probate. Give our office a call today for an appointment. We look forward to hearing from you.

The post Executor of a Will or An Estate: 3 Helpful Tips appeared first on The Swenson Law Firm - Providing Guidance and Protection to California Businesses and Employers .

Should I Include My Grandchildren in my Will?

Wed, 28 Dec 2016 17:10:00 GMT

Whether to include your grandchildren in your will is something to consider. We often meet with grandparents who share a special bond with their grandchildren. They want to see their grandchildren succeed. They see passing on financial stability as a gift to their grandchildren. However, proper precautions need to be taken in order to look out for their grandchildren’s well being.

1.Include an age stipulation.

When we pass on, we don’t know how old our grandchildren will be. If they are under 18, or if they are financially immature when you die, they could receive a large inheritance before they know how to handle it. The inheritance could be easily wasted. To avoid this, you can create a long-term trust that includes continued management of assets.

2.Don’t give it all in a lump sum.

The inheritance could be quickly squandered if your grandchildren have not learned how to handle large sums of money, regardless of their age. There are options available, such as staggering their distributions or a “beneficiary controlled” trust. An experienced Estate Planning Attorney can help you decide the best way to leave your assets.

3.Communicate with them on how you’d like them to use the inheritance.

You may have specific intentions for what you want the inheritance to do for your grandchildren, such as:

You can’t expect it to happen if you don’t communicate it to them in your will or trust. Clarify your intentions and wishes by stipulating specific things or activities that the money should be used for in your will or trust.

4. Avoid ambiguity.

Be clear in every detail concerning your grandchildren’s inheritance. Money can make people act in unusual ways. If there is any ambiguity in your will or trust, greedy relatives may try to contest your estate plan. An experienced Estate Planning Attorney can help clarify ambiguous points in your will or trust.

5. Be aware of your retirement needs.

Your grandchildren may find themselves in a situation in which you would like to help them. You may consider giving them part of their inheritance early or set up a trust for them. It is important to speak with an experienced Estate Planning Attorney prior to doing this and discuss the long- term effects.

The Swenson Law Firm is a Sacramento Estate Planning and Business Law Firm. Contact us to set up a consultation.

If you have not set up an Estate Plan yet, check out our blog on Top Reasons You Should Create an Estate Plan .

How to relax over the holidays as a business owner

Fri, 16 Dec 2016 17:56:00 GMT

Relaxing over the holidays should be a perk of being a business owner. Unfortunately, business owners more often than not, have a more difficult time relaxing through the holidays. As a small business ourselves, we too are looking for ways to enable us to relax through the holidays. Here are some tips that we have found to assist in this process.

If you have something that is worrying you, it may help to see a professional. For example, you may want to set up an appointment with an Accountant, if you are worried about your taxes. If you are worried about getting your affairs in order , employment or liability issues, you may want to consult with an Estate Planning and Business Attorney. Consulting with these professionals can take weight off of your shoulders and give you direction. Consulting with a business coach can also assist you in setting up a plan to take care of issues that come up in business and help you take steps for the future of your business.

Our law firm utilizes a business coach . After coming back from a vacation earlier this year, I commented to her that it was difficult to relax. She gave us some wonderful tips on enjoying vacation time.

3 Tips that Keep you from Enjoying your Vacation:

The solution for all three of these is to plan ahead!

Our firm is still working towards being able to have that rest and relaxation that every business owner needs. It takes hard work as a business owner to be able to relax. If you need a referral to a good professional to assist you with your business issues, give us a call we can help with your estate planning and business related legal issues and can refer you to trusted professionals to help you to have peace of mind in your business and personal life.

We would love to hear from you. What have you found to help you relax during the holidays?

The post How to relax over the holidays as a business owner appeared first on The Swenson Law Firm - Providing Guidance and Protection to California Businesses and Employers .

A Thoughtful Holiday Gift for Your Adult Child

Wed, 16 Nov 2016 23:00:00 GMT

The holidays are nearing once again and you need to come up with a thoughtful holiday gift for your adult child. Some years are easier than others to think of that perfect gift for your child. If you are looking for a thoughtful gift for your adult child, you may want to consider an Estate Plan.

What is an Estate Plan? Why would this be a good gift for my adult child? These may be some of the questions going through your mind.

An Estate Plan is a plan put into place during a person’s life while they are capable. It arranges the management of their assets and puts into a place a plan for their family and loved ones in the case of incapacity or death. Most people may think of a will. A will is part of an Estate Plan, as well as Powers of Attorney, HIPAA Authorization and Guardianship.

You may be thinking that this sounds like a morbid gift, but really it is something that can bring peace of mind. When an adult child gets married or starts having children the love in their life continues to increase. With that love, there is an increase in responsibility and sometimes anxiety. For instance, after my wife and I had our first child, my wife was terrified to go on a trip without our child. She would worry about the chance that something terrible might happen to us. The unexpected worried her, as she wondered who would take care of our child if something were to happen to us. These types of worries are real, as is the worry of thinking about what would happen if my spouse passed away.

An Estate Plan can be as simple or as complex according to the needs of one getting an Estate Plan. An Estate Planning Attorney can go over the needs of the individual or family and assist in choosing what will most benefit their concerns.

An Estate Plan may not have been your first thought in choosing a thoughtful gift for your adult child, but it could be the gift that can add to their present enjoyment of life knowing that this is something that has been put into place.

The Swenson Law Firm is a business and estate planning law firm located in Sacramento County. This holiday season we offer free Estate Planning consultations. Give us a call if you would like more information. We are here to help.

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What Happens if I Become Incapacitated?

Thu, 03 Nov 2016 18:07:00 GMT

An Estate Plan in one sentence is: A plan of action of what happens to you, your property, and the people that you are responsible for when you either die or become incapacitated. Many people think of an Estate Plan as simply a will or as something that goes into effect after I die. There are many parts to an estate plan. One of those parts is a Power of Attorney. This is someone that you choose to act on your behalf for financial or health related purposed, usually in the event of some incapacity. Incapacity is when you have a physical or mental inability to manager your affairs.

Without a Power of Attorney, your family and friends will have to rely upon the courts and the legal system to obtain authority over your affairs. Creating a Power of Attorney allows you to plan ahead in case of a later incapacity to ensure that your finances, healthcare, and other concerns are properly addressed to correspond with your wishes. An Estate Plan with a Power of Attorney can assist you if you become incapacitated. Stay tuned for another article in which you will learn about some of the authority that is given to a financial power of attorney.

Sam Swenson is a Business and Estate Planning Attorney in Sacramento, California. He can be reached at 916-333-0833.

The post What Happens if I Become Incapacitated? appeared first on The Swenson Law Firm - Providing Guidance and Protection to California Businesses and Employers .

Internet Providers And Copyright Infringement: The Cox Communications Case

Mon, 17 Oct 2016 22:55:00 GMT

Cox was expected by BMG to deliver these notices to computer users. BMG alleged that Cox procrastinated and used various technical measures to prevent the notices from reaching their intended recipients. BMG’s argued that Cox should was liable because it had knowledge that its users were illegally downloading copyrighted materials, and because it contributed to the actual incidents of infringement.

This finding that Cox is liable for the piracy of its users is of great concern to other Internet providers. The ruling raises fresh issues and questions about the liability of Internet providers beyond copyright, as well as the creation of greater invasions of users’ privacy because of the perception that users need to be monitored and controlled.

For the last five years, Rightscorp warned U.S. Internet service providers of the risks of liability for any failure to implement and enforce policies under which they terminate the accounts of their subscribers who repeatedly infringe upon the copyrights of others.

In addition to the aforementioned notices that ISPs directly send to users suspected of copyright infringement, Internet providers have established policies that allow users a number of strikes before their access is terminated. These policies have provided some measure of insulation from direct legal action as they allow these companies to be eligible for a legal “safe harbor” as to liability. Judge Liam O’Grady felt that Cox didn’t qualify for safe harbor protection in this instance because it didn’t act aggressively enough to terminate the accounts of suspected violators. Some question whether Cox actually did anything wrong even though it was found to not qualify for safe-harbor protection. More to come.

Contact the legal team at The Swenson Law Firm for assistance. Contact us today to learn more about how we can assist you with matters such as trademarks, defending lawsuits, business formation, contract negotiations, hiring employees, and protecting your intellectual property.

The post Internet Providers And Copyright Infringement: The Cox Communications Case appeared first on The Swenson Law Firm - Providing Guidance and Protection to California Businesses and Employers .

Estate Planning Mistakes Of The Rich And Famous: James Brown

Fri, 14 Oct 2016 22:58:00 GMT

Brown’s will was executed in 2000, which provided $2 million in scholarships for his seven grandchildren while dividing his personal property, worth an estimated $2 million, among the six individuals he recognized as his children. The will contained an in terrorem clause which stated that any heir challenging the arrangement would be disinherited, and thus lose any share.

In addition, in the rights to Brown’s image, Brown’s estate also contained over 850 copyrights in his musical works. In 2007, Brown’s four children and one grandchild of Brown, initiated a will challenge, alleging undue influence on the part of trustees involved Brown’s estate. In 2009, a settlement was reached in the court, but the South Carolina Supreme Court overturned the agreement for the reason that the settlement rewrote Brown’s estate plan.

Finally, in 2016, almost ten years since Brown’s death, a settlement order was issued by a South Carolina judge. Despite the in terrorem clauses, the order permits Brown’s four children, all will contestants, to receive the personal property originally left to them under the will, $37,500 each, and does not make them responsible for any of the costs of the 9-year will contest. Nine years of delay and litigation costs would seemingly be at end, but the order neither conclusively resolves Brown’s estate battle nor does it clarify ownership regarding the copyrights left to his charitable trust. And the beat goes on. . wait, that was a different sixties musical icon.

To learn more about planning for your estate, contact the legal team at The Swenson Law Firm . With our years of estate planning experience, we are an effective, efficient and affordable choice in providing important advice and preparing the appropriate estate plan to effectuate your wishes.

The post Estate Planning Mistakes Of The Rich And Famous: James Brown appeared first on The Swenson Law Firm - Providing Guidance and Protection to California Businesses and Employers .

Can an Employer Terminate Me Because I Filed Bankruptcy?

Wed, 12 Oct 2016 01:23:00 GMT

Federal law, specifically 11 USC § 525 of the Bankruptcy Code protects employees from discrimination on the basis of a bankruptcy filing. 11 USC § 525(a) protects government employees while 11 USC § 525(b), private employees. Thus, an employer in California may not fail to hire a prospective employee, nor terminate a current employee, for filing bankruptcy. Since January 1, 2012, employers in California, except certain financial institutions, have been prohibited from obtaining consumer credit reports for use in the process of hiring prospective employees and promoting current employees.

Despite this protection, potential or past bankruptcy filers (debtors) still feel insecurity and uneasiness when they return to work imminently before or after a bankruptcy filing. If a particular debtor has an outstanding wage garnishment, his or her employer will inevitably find out about the bankruptcy filing. However, these employees should know that most employers are familiar with the instant law and realize that a bankruptcy filing may improve an individual’s economic state, thus significantly relieving stress and making them a better employee.

If you are an employer that is interested in learning more protecting yourself from employee discrimination in the workplace, contact the legal team at The Swenson Law Firm for assistance. Contact us today to learn more about how we can assist you with matters such as trademarks, defending lawsuits, business formation, contract negotiations, hiring employees, and protecting your intellectual property.

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Special Needs Trusts, Part 2: When And Why You May Need An SNT

Tue, 11 Oct 2016 01:23:00 GMT

When do you need an SNT and why? A special needs trust preserves a disabled person’s important government benefits, unlike a disposition of money or property through a standard estate planning tool like a trust or will. If this occurs, special needs beneficiaries will likely lose their eligibility for government benefits such as Supplemental Security Income (SSI) and Medi-Cal.

Because eligibility for these government programs is based upon income, assets, (and having a disability or blindness), the receipt of money or property in anything other than a special needs trust may reduce or even eliminate a recipient’s benefits. As resources increase, benefits decrease, and beyond a certain threshold, are eliminated entirely.

Individuals in California who have children with special needs based upon a disability should not wait until the last minute to seriously provide for these loved ones in a well-planned and carefully drafted estate plan . Third-party SNTs, discussed in the first part of this article, are funded with assets owned by an individual other than the trust beneficiary. The beneficiary never possesses nor has a right to possess these funds. Assets in third party trusts are not subject to recovery by the California Department of Health Care Services.

Individuals with concerns for a disabled or special needs family member should establish a special needs trust before they die. Federal and state law contain complicated rules and regulations for disabled individuals wishing to establish first-party or third-party SNTs. Parties interested in special needs trusts of any kind should contact an experienced and knowledgeable trust attorney. To learn more about special needs trusts, as well as wills, living trusts, powers of attorney, and newly available in California, “Transfer-On-Death” deeds, contact the legal team at The Swenson Law Firm .

The post Special Needs Trusts, Part 2: When And Why You May Need An SNT appeared first on The Swenson Law Firm - Providing Guidance and Protection to California Businesses and Employers .

Estate Planning Mistakes Of The Rich And Famous: Harper Lee

Sat, 08 Oct 2016 01:40:00 GMT

Harper Lee was a very private person during her lifetime, giving her last interview in 1964. Yet, despite the fact that her father and sibling were attorneys, Ms. Lee opted to utilize only a will to dispose of her estate. Many question the wisdom of this, simply considering Ms. Lee’s private nature.

Wills become public record when submitted to probate. If Ms. Lee had chosen to utilize a trust, she would have protected the information contained within her estate plan. Instead, as the probate process unfolds, details as to the disposition of her property will be made public.

And there is yet another disadvantage of Ms. Lee’s choice to solely use a will. Legal observers estimate that it will take at least six months to a year for the probate court in Alabama to locate, secure, manage and distribute Ms. Lee’s assets. A trustee following a well-drafted trust with clear and specific provisions for the distribution of assets would easily complete this process much more expeditiously and efficiently.

Even those individuals with the utmost knowledge and wisdom could benefit from assistance regarding the disposition of their assets upon their death in order to transfer their property to their loved ones in the quickest, easiest, and most efficient way possible without conflict or delay. A well-drafted estate plan can accomplish all of this. To learn more about the estate planning options available in California, contact the legal team at The Swenson Law Firm .

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California And Foreign LLCs Must Remember To File Statements Of Information in California

Wed, 05 Oct 2016 19:12:00 GMT

An LLC’s first Statement of Information is due within 90 days after registration with the California Secretary of State, as well as when any information has changed since the last complete Statement of Information was filed. Penalties exist for failure to file this form.

The Statement of Information contains the business address of the LLC, as well as the names of the members of the LLC and its statutory agent for service of process, a complete California street address is required for the latter to enable service of process. It is also contains the name of the type of business and the chief executive officer.

For both an LLC and a corporation, its name must be entered exactly as it is registered with the California Secretary of State. Corporations must have all three statutory officers (Chief Executive Officer, Secretary and Chief Financial Officer) listed with their complete addresses, whether business or residential. Every LLC is required to have at least one member. If no manager is appointed, all members of an LLC are managers. Each must have a complete business or residential address.

To learn more about the forms such as the Statement of Information required to be filed by business owners in Calfornia, contact The Swenson Law Firm for assistance today. The Swenson Law Firm is located in Sacramento County proudly serving the entire State of California.

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Is Telecommuting a Reasonable Accommodation?

Wed, 27 Jul 2016 23:38:00 GMT

Employers should also consider the legal reasons for allowing employees to telecommute, particularly in regard to complying with the Americans with Disabilities Act (ADA). While telecommuting is not specifically discussed in the ADA, permitting an employee to work from home could constitute a reasonable accommodation for a disabled employee. In fact, the Equal Employment Opportunity Commission (EEOC) may consider an employer to be obligated to offer telecommuting to a disabled worker in certain circumstances. In determining if telecommuting is a reasonable accommodation, the EEOC would likely consider:

Although there is a history of the courts viewing telecommuting as a reasonable accommodation only in limited circumstances since being at the worksite is an essential function of most jobs, it is a position that may change as societal norms and pressures change.

Employers should confer with legal counsel before denying a request to telecommute as a reasonable accommodation under the ADA. We can help you assess the essential functions of the employee’s job and whether they can be properly performed from the employee’s home.

If you need assistance with a reasonable accommodation request under the ADA, contact the legal team at The Swenson Law Firm to schedule an initial consultation.

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Setting Guidelines for Employee Online Conduct

Mon, 25 Jul 2016 23:35:00 GMT

Most of the guidelines for online conduct are common sense, but it is better to outline your expectations for your employees than to assume they know how you want them to conduct themselves online. When participating in social networking activities on behalf of your company, employees should:

Although employers will not monitor employees’ use of social media on a daily basis, it is important to have policies in place to protect their company’s reputation. Social networking can be an effective tool for fostering relationships and growing your business, but it can also lead to disastrous consequences if your employees do not act professionally. To learn more about creating social media policies for your employees to follow, contact one of the business attorneys at The Swenson Law Firm .

Obtaining the right advice from the start can significantly increase the likelihood of your business being a success. Contact The Swenson Law Firm for help.

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Terminating your Business’s Relationship with an Employee

Fri, 22 Jul 2016 23:32:00 GMT

If you discover that the employee will be performing the same or similar type of work for the new employer, or the employee disagrees with any of the matters being discussed, you should confer with legal counsel regarding what actions (if any) should be taken. It may be necessary to formally notify the new employer of the employee’s continuing obligations in order to reduce the risk of a dispute and to protect your business’s trade secrets.

Contact us today to schedule your initial consultation. The attorneys at The Swenson Law Firm provide a variety of business law services to entities of all sizes.

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Protection of Trade Secrets in Relations with Employees

Wed, 20 Jul 2016 23:29:00 GMT

When a new employee joins your business team, it is important to complete the following tasks:

If you have concerns regarding your new hire after discussing the above topics, contact a lawyer to discuss the best approach for handling the situation. You are better off dealing with concerns before a dispute arises with the employee’s prior employer than waiting for a lawsuit to be filed. This may include having your legal counsel contact the prior employer to request a copy of the non-disclosure agreement so you can review its terms and ensure that it is not violated.

If you are interested in learning more about honoring or enforcing non-disclosure agreements or how we can assist you with your business-related needs, contact the knowledgeable lawyers at The Swenson Law Firm to schedule an appointment.

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Proper Documentation of Trade Secrets

Mon, 18 Jul 2016 23:27:00 GMT

Your company’s trade secrets – in paper or electronic format – should be accompanied by a confidentiality notice. Each page should be stamped “Confidential.” The notice should notify all parties that the document includes trade secrets and that access to the information is limited by your business. It should prohibit the information from be copied, distributed or otherwise disclosed.

Non-written disclosures must also be made if trade secrets are being discussed during meetings. It is preferable that all parties attending the meeting be required to sign a non-disclosure agreement. Further, trade secrets should only be discussed to the extent necessary. Before any discussions regarding trade secrets begin, notices and disclosures should be made verbally as well as reduced to writing.

The directors, officers and other key personnel of your business should routinely assess the company’s information to determine whether it should be maintained as trade secrets. As your company grows, so should your efforts to maintain their secret nature. When in doubt, it is safer to err on the side of protecting and maintaining the secrecy of your business’s information.

The Swenson Law Firm is located in Sacramento County and we proudly serve businesses of all sizes from all over the State of California. Contact us today to learn more about how we can assist you with matters such as trademarks, defending lawsuits, business formation, contract negotiations, hiring employees, and protecting your intellectual property. With our years of complex business trial and litigation experience, we are an effective, efficient and affordable choice in representing you at the bargaining table and in the courtroom.

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How do I Identify my Company’s Trade Secrets?

Fri, 15 Jul 2016 23:25:00 GMT

To qualify as a trade secret, the information must not be known to the public. It must be a secret that confers a potential or actual economic or business advantage to your company. The terms “trade secret,” “confidential,” and “proprietary” are often used interchangeably, but in many contexts they do not mean the same thing. Thus, when drafting agreements it is imperative that you do not use terms that can be construed differently by the court.

Your company may have confidential information that does not rise to the level of being a trade secret, even though it is kept private within your company. Additionally, if you have proprietary information that is copyrighted or protected by a trademark or patent, it can be made public without losing protection. Thus, it is important to confer with a knowledgeable attorney to discuss how to best protect your proprietary information.

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Is your Business Protecting its Trade Secrets?

Wed, 13 Jul 2016 23:23:00 GMT

Below are a few steps your company can take to immediately reduce the risk of your trade secrets being stolen:

If you want to ensure that your trade secrets are being properly protected, contact one of our business attorneys for help. The Swenson Law Firm is located in Sacramento County and we proudly serve businesses of all sizes from all over the State of California. Contact us today to learn more about how we can assist you with matters such as trademarks, defending lawsuits, business formation, contract negotiations, hiring employees, and protecting your intellectual property. With our years of complex business trial and litigation experience, we are an effective, efficient and affordable choice in representing you at the bargaining table and in the courtroom.

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How Employers Should Handle Time-Wasting Activities

Mon, 11 Jul 2016 23:20:00 GMT

So, how does an employer motivate employees and prevent boredom? Short of removing all technology from the office and disciplining employees for socializing during work hours (both terrible ideas), below are a few suggestions:

It is impossible to stop all time-wasting activities, because everyone needs a break now and then. However, if you can be creative and consider ways to decrease time wasting activities and keep your solid employees happy, it will benefit everyone involved.

If you are interested in learning more about employer-employee matters or how we can assist you with your business-related needs, contact the knowledgeable lawyers at The Swenson Law Firm to schedule an appointment.

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Is there a Downside to Trade Secret Protection?

Fri, 08 Jul 2016 23:16:00 GMT

It is important to understand that if you consider something to be a trade secret, you must do something to keep it private. If you do not take any actions to safeguard it, it will be extremely difficult to convince the court that you had a trade secret. You might be surprised at how much valuable business information is not protected as a trade secret because a few simple steps weren’t taken to protect it.

The downside to trade secret protection is that while it can be easy to acquire, it can also be easy to lose. Generally speaking, as soon as a trade secret is made public in any way, you lose all protection. There are a few rare cases where the court can issue an order of protection to contain a trade secret infraction, but in most cases it is impractical to regain the secrecy.

Trade secrets are a delicate matter. Every business should take reasonable measures to protect their confidential information. If other types of intellectual property safeguards are available, you should at least consider them. Working with a knowledgeable business attorney now to protect your proprietary information can save your business in the future.

Contact us today to schedule your initial consultation. The attorneys at The Swenson Law Firm provide a variety of business law services to entities of all sizes.

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Contracts: Understanding Boilerplate Clauses

Wed, 06 Jul 2016 02:05:00 GMT

The following are a few examples of boilerplate clauses that may appear in your contracts. It is important that you understand these provisions in order to avoid an unintentional breach of the agreement as well as a lawsuit.

Indemnification Clause

Indemnification means one party is protected from certain actions of the other party. An indemnification clause can protect you from negligence, misconduct or wrongdoing by the other party that you are not involved with. Having this type of protection can be significant, especially if contractors and subcontractors will be performing the services.

Merger and Integration Clause

Most contracts contain a statement that the entire agreement between the parties is what is outlined in the written contract. This is commonly referred to as the “entire agreement clause.” It is an important provision because it makes it difficult for the parties to enforce any oral agreements that were not included in the written document. The court considers the only binding agreements to be within the four corners of the contract.

Time is of the Essence Clause

Many contracts have deadlines established and the failure to meet the deadline can constitute a breach of the contract. A provision stating that time is of the essence typically details the damages that are available to the non-breaching party if the deadlines are not timely met.

Liquidated Damages Clause

If actual damages for breach of the contract (such as failure to deliver or perform) are difficult to calculate, liquidated damages can be granted to the non-breaching party.

There are numerous other types of boilerplate clauses that can be included in contracts. It is important to read and understand each of these provisions. And remember, you are not obligated to agree to boilerplate clauses as they are written, so negotiate the language in them just as you would any other contractual provision. If you don’t understand any part of the contract, contact one of the business attorneys at Swenson Law Firm.

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Why do I want to Avoid the Probate Process?

Mon, 04 Jul 2016 22:00:00 GMT

Probate is the legal process used by courts to administer the estate of a deceased individual. During the probate process, all claims made against the estate are resolved and the deceased’s assets are distributed according to the terms of the deceased’s Will. So, what is the big deal? Why does everyone say you should avoid probate? Below are two of the most important reasons it is important to create an estate plan that allows your loved ones to avoid probate:

The time and expense involved in probate aren’t the only reasons you should avoid it, but they are definitely significant considerations. You can save money by handling your financial affairs while you are living rather than leaving the mess for your loved ones to deal with after you are gone. Additionally, creating an estate plan is one of the best ways you can make sure your loved ones are protected.

Contact us today to schedule your initial consultation. The attorneys at The Swenson Law Firm provide estate planning services for individuals with estates of all sizes. Have a great holiday!

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LLP versus LLC

Fri, 01 Jul 2016 21:58:00 GMT

Both a LLC and a LLP combine the beneficial aspects of a partnership and a corporation, but they also have significant differences. It is important to educate yourself on the advantages and disadvantages of each type of business entity because your choice will have long-term consequences.

Limited Liability Company

A LLC provides its owner(s) (called “members”) with limited liability and certain tax benefits. It is most commonly used by small businesses. A LLC can have one or more members, which can be individuals, corporations, foreign entities or even other LLCs.

It should be noted that not every type of business can be a LLC, so it is essential to check the applicable state law. For instance, financial institutions are usually prohibited from being LLCs. Additionally, some states limit certain licensed professionals from forming LLCs. In those instances, the same benefits may be obtained by forming a professional limited liability company (PLLC).

Limited Liability Partnership

A LLP is a partnership that is established by two or more owners (called “partners”). The LLP is most commonly used by professional businesses. The partners are afforded limited personal liability.

The main difference between the LLP and LLC is that the LLP is required to have a managing partner who assumes liability for the actions taken by the partnership. The investors and silent partners who do not take a managerial role have liability protection.

The laws governing LLPs vary from state to state, so you should confer with a local attorney to determine whether your profession can form a LLP.

The above is a short summary of LLCs and LLPs. To learn more, contact us. Obtaining the right advice from the start can significantly increase the likelihood of your business being a success. Contact The Swenson Law Firm for help.

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Have you Appointed a Guardian for your Minor Children?

Tue, 28 Jun 2016 21:55:00 GMT

The guardian over the person is the individual that will raise and care for your minor child. This person will raise your child until he or she is 18 years old. The guardian over the estate is the person who will handle your child’s financial situation. The guardian over the person and the guardian over the estate can be the same person or they can be two separate individuals. There are pros and cons in appointing the same person to serve in both capacities, so you should discuss this matter with your estate planning attorney .

It is also important to note that if your estate plan includes a Trust, your minor child’s inheritance can be distributed pursuant to specific instructions left by you. For instance, if you want your child to reach a certain age before receiving a distribution or you want the inheritance to be paid in installments, your Trust allows you to accomplish these goals. You should discuss your options and the flexibility provided by setting up a Trust with your lawyer.

If you have minor children and you want to make sure their best interests are protected if something should happen to you and your spouse, let us help. Don’t wait any longer, contact us today.

The Swenson Law Firm is located in Sacramento County and we proudly serve individuals, families, and businesses of all sizes from all over the State of California. Contact us today to learn more about how we can assist you with matters such as estate planning, trademarks, defending lawsuits, business formation, contract negotiations, hiring employees, and protecting your intellectual property. With our years of complex business trial and litigation experience, we are an effective, efficient and affordable choice in representing you at the bargaining table and in the courtroom.

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Why do I need a Power of Attorney?

Fri, 24 Jun 2016 21:52:00 GMT

There are several reasons why you need a POA. Nobody knows when “their time” will be, so it is important to take action while you can. When you appoint somebody to act as your POA, they are your “agent” or “attorney in fact.” In other words, your appointee will be permitted to manage your finances and other personal matters if you become incapacitated or otherwise unable to handle them for yourself.

If the idea of giving another party this type of power concerns you, it is important to understand that the POA is obligated by law to act as your fiduciary. In other words, a POA is obligated to act in your best interest and follow your wishes at all times. Your POA should be somebody you trust, such as a family member or close friend, but you can also appoint a third-party such as a lawyer or financial institution.

The two main types of powers of attorney are the:

Durable power of attorney. A durable POA is effective immediately and it is not necessary to prove your incapacity before the POA can act on your behalf.

Springing power of attorney . This POA only becomes effective if certain specified conditions outlined by you are met. For example, you can require that a physician (or a court of law) declares you to be incapacitated and unable to handle your own affairs before the POA is effective.

If you want to learn more about creating a power of attorney and how it can benefit you, give us a call for an appointment. Take action to appoint the person you trust the most while you are able to make the decision.

Contact us today to schedule your initial consultation. The attorneys at The Swenson Law Firm provide estate planning services and a variety of business law services to entities of all sizes.

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Should my Business be a LLC or Corporation?

Wed, 22 Jun 2016 21:48:00 GMT

Both the LLC and corporation are formed by filing formation documents with the applicable state authority. They each afford the owners with protection from liability. In other words, owners of the entity are not typically personally liable for debts of the business in either a LLC or corporation.

Limited Liability Companies

A LLC, while similar to a corporation, affords you more flexibility in managing your entity. It also offers flexibility in handling your taxes and it typically requires fewer record keeping requirements.

The owners of a LLC are called members, and each member owns a percentage of the business. There are typically restrictions on transferring membership interests in a LLC to other parties. For example, a member may be required to obtain the approval of other members prior to making a transfer. Additionally, if a member leaves, dies or files for bankruptcy protection, the LLC may need to be dissolved. This is a beneficial aspect of the LLC for small businesses who want to select their business partners and who do not require investors.

Corporations

Corporations have existed for a long time. They provide your business with an established structure and the ability to transfer ownership shares, including outside investors.

The owners of a corporation are called shareholders. The corporate entity issues shares to its owners and each shareholder owns the number of shares that corresponds to the percentage of ownership the owner has. Thus, if the corporation issues 100 shares and you own 50% of the company, you should have 50 shares.

Corporate shares are also relatively simple to transfer from owners to other parties. A corporation can have a perpetual life, which means that if a shareholder leaves, dies or sells shares, it does not jeopardize the corporation’s existence.

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The Copyright Question Surrounding Cheerleader Uniforms

Mon, 20 Jun 2016 21:46:00 GMT

Varsity Brands, one of the largest cheerleader uniform companies, claims that its colorful patterns of chevrons and stripes can be copyrighted just the same as other uniforms, like the one Mickey Mouse wears. Star Athletica is a start-up company trying to get its big start in the cheerleading uniform business argues that its designs are an inseparable part of a uniform since they identify the person wearing it as a cheerleader. The district court ruled in favor of Star Athletica, but the Sixth Circuit overruled the decision. The Sixth Circuit held that Varsity’s designs were unique and copyrightable.

The Supreme Court is tasked with creating a clear legal test that can be used to determine when the design of clothing can be protected by a copyright. If the design is central to the use of the garment, it won’t be copyrightable. However, if the design has original aspects that are not part of the function of the clothing, the designer may have the ability to claim a copyright. Finding a way to draw a line between these two has been difficult for the courts.

The cheerleading uniform case is one of two copyright cases the Supreme Court will be hearing next term. The other case is a patent case regarding adult diapers. In the adult diapers case, the issue is whether the patent infringement lawsuit was unduly delayed in being filed.

If you are interested in learning more about copyrights or how we can assist you with your business-related needs, contact the knowledgeable lawyers at The Swenson Law Firm to schedule an appointment.

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What kind of Works can I Protect with a Copyright?

Thu, 16 Jun 2016 21:41:00 GMT

Copyrights apply to works that are more than just a person’s idea. To be copyrightable, the work must be a fixed “tangible form of expression.” Thus, it must be written down or otherwise recorded. The protection provided by a copyright is afforded to only to the expression of the idea or plan.

The work being copyrighted must also be original. It cannot be a copy of another party’s work and it must contain creativity on the part of the author. For example, ingredients may not by copyrightable, but an original recipe might be.

Below are a few categories of copyrightable works:

The above categories can be broadly applied. For instance, if you create a dance, it can be registered as both choreography (if it is written down) and as audiovisual work (if filmed).

If you have a copyrightable piece of work and you need assistance ensuring it is protected, we can help. Obtaining the right advice from the start can significantly increase the likelihood of your business being a success. Contact The Swenson Law Firm for help.

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Top Reasons you Need an Estate Plan

Tue, 14 Jun 2016 21:39:00 GMT

The Swenson Law Firm is located in Sacramento County and we proudly serve individuals and businesses of all sizes from all over the State of California. Contact us today to learn more about how we can assist you with matters such as estate planning, trademarks, defending lawsuits, business formation, contract negotiations, hiring employees, and protecting your intellectual property. With our years of complex business trial and litigation experience, we are an effective, efficient and affordable choice in representing you at the bargaining table and in the courtroom.

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Sirius XM Radio’s Copyright Lawsuit

Fri, 10 Jun 2016 19:53:00 GMT

The case before the New York Court of Appeals will determine whether state common law established a royalty obligation for satellite and Internet radio companies that play music made before 1972.

Federal copyright law is applicable to recordings made after 1972, and states were left to create their own copyright rules for music released prior to this date. SiriusXM has operated under the premise that Section 114 of the Copyright Act allows them to broadcast recordings recorded prior to 1972. The law limits exclusive rights and sets forth how the owners of the recordings are to be compensated. The royalty rates paid for different types of broadcast outlets are set by the Copyright Royalty Board, and the SoundExchange collects the royalties and pays them to the owners of the copyrights.

If the Court of Appeals rules against SiriusXM, their cost of doing business will drastically increase. It has been alleged that damages are at least $100 million, but possibly more.

This case is one part of a broader, national copyright battle between older artists and Internet radio companies. In fact, similar litigation has been filed in California and Florida, each claiming copyright infringement based upon the laws of those states.

If you need assistance with registering a copyright or trademark, or help handling opposition to your trademark application, contact the legal team at The Swenson Law Firm to schedule an initial consultation.

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What to Learn from Prince’s Estate Planning Mistake

Wed, 08 Jun 2016 19:45:00 GMT

By not creating an estate plan to govern the distribution of his estate, Prince left a situation where his loved ones may face years of legal battles. Further, Prince failed to protect his work from a concern he had throughout his life, which was obtaining freedom for artists from the restrictive recording contracts they so often were forced to sign.

We may never know why Prince did not create an estate plan. Whether he did not deal well with thinking about his mortality or he simply hadn’t gotten to it yet, he left the burden squarely on the shoulders of his family and other loved ones.

If you want to avoid the same mistake Prince made, consider the following:

If you are interested in learning more about getting your estate in order, contact the knowledgeable lawyers at The Swenson Law Firm to schedule an appointment.

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3 Reasons Employers Should Embrace Social Media

Mon, 06 Jun 2016 08:00:00 GMT

Social media has played one of the most significant roles in changing the modern workplace. It has become one of the primary ways employers can communicate with its own employees as well as the public.

Below are three important tips for employers regarding the use of social media:

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Legal Remedies Available in Domain Disputes

Thu, 02 Jun 2016 08:00:00 GMT

Lawsuits over domain names originally focused on trademark law , such as whether there was a likelihood of confusion or it was dilutive of a personal name (usually somebody famous). However, in 1999 Congress passed the Anticybersquatting Consumer Protection Act . The goal of the law was to prohibit individuals from registering domain names containing trademarks with no intention of creating a legitimate website, but rather with the intent to sell the domain name to the owner of the trademark. To take over a domain name, however, the party is required to prove that the holder of the domain name acted in “bad faith.”

For famous individuals, the Act allows them to file litigation against any other party who registers their name for the purpose of selling it for a profit. The more general part of the statute protects businesses from individuals who register a domain name that is the same or confusingly similar to the company’s existing trademark. Below are numerous factors the statute sets forth for courts to consider when deciding if the domain name was registered in bad faith:

If you are interested in learning more about responding to opposition to your trademark application, contact the legal team at The Swenson Law Firm for assistance.

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Easy Ways to Avoid Contract Disputes

Tue, 31 May 2016 08:00:00 GMT

One of the most important things you can do in documenting the deal is to make sure the written contract accurately reflects the negotiated transaction. While this may seem like simple advice, you would be surprised at how many parties get into a rush and miss inaccuracies. In fact, it commonly occurs when one party provides a form contract without revising it to include the finer points of the deal. While form contracts can be helpful, they can also get you into trouble if you don’t modify the document to accurately reflect the specific deal points.

One of the most highly disputed clauses in a contract deals with performance issues. It is imperative to be clear about deadlines and avoid using vague time periods. Setting forth clear and concise deadlines protects both parties. It not only prevents confusion, but it also ensures you will receive what is expected in a timely manner. It can also provide you the ability to cancel the contract without penalty if the deadlines are not met.

Additionally, a contract should detail the level of quality that is expected and how it will be decided whether the standard has been met or not. Whether it is services or product that is being provided, each party should be clear on what is expected and who will bear the burden of fixing any problems (and within what time frame).

Finally, when you are drafting a contract, it is wise to include an “escape clause.” This clause provides that if a party can no longer perform under the agreement, there is a method for mitigating the damages while also avoiding litigation. In other words, if a party must back out of the contract, it can pay a certain sum of money to the other party in satisfaction of its obligations under the agreement.

To learn more about negotiating and drafting contracts that will protect your company’s best interests, contact the legal team at The Swenson Law Firm . With our years of complex business trial and litigation experience, we are an effective, efficient and affordable choice in representing you at the bargaining table and in the courtroom.

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Trademark Protection for Hashtags

Fri, 27 May 2016 08:00:00 GMT

As a result, many businesses are attempting to protect their intellectual property on social networking sites by filing trademark applications for hashtags that directly relate to their product or brand.

A hashtag, which was first used on Twitter, is words or phrases that are preceded by a hash or pound sign. A hashtag is used to label the message or signal other Internet users that the post is related to a certain topic or issue.

According to the Wall Street Journal , research conducted by Thomson Reuters CompuMark, nearly 1400 applications to trademark specific hashtags were filed around the world during 2015. That number has been growing consistently since 2010, when just 7 companies applied to trademark hashtags.

Thomson Reuters CompuMark also discovered that the number of successful applications for hashtag trademarks is increasing. In 2014 there were 103 hashtag trademarks registered. In 2015, the United States had 1,042 applications, with Brazil having 321, France with 159 and the United Kingdom and Italy with 115.

Hashtags are being used by marketers as a way to get consumers tweeting about certain products or promotions. However, an issue arises because hashtags can be used by anyone, including competitors. Thus, obtaining hashtag trademarks may be the only way to protect this type of intellectual property.

The Wall Street Journal reports recent examples of hashtag trademarks are the #sayitwithpepsi, which was registered in Europe by PepsiCo last year, and #everydaymadewell, which was registered in the U.S. by clothing retailer Madewell.

If you need assistance with registering a trademark or help handling opposition to your trademark application, contact the legal team at The Swenson Law Firm to schedule an initial consultation.

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Signs you need an Employment Attorney – Part 2

Wed, 25 May 2016 08:00:00 GMT

Litigation

If you are served with a lawsuit filed by one of your current or former employees, you should contact an employment attorney immediately. An employer must act swiftly to protect its rights and the deadline for responding to the lawsuit is short. In fact, most courts require a legal response to be filed in the lawsuit within two to three weeks from the date you were served with the petition or complaint. Thus, you must select your legal counsel and determine the appropriate response very quickly.

Administrative claims

Although administrative matters do not always require you to use an attorney, they should be taken very seriously. For example, if an employee files a claim of discrimination, harassment or retaliation with the U.S. Equal Employment Opportunity Commission, you are wise to confer with legal counsel. Your attorney can assess the validity of the claim, help develop a response to the allegations, assist with any investigation by the agency, as well as how to present evidence at the hearing.

Factors to consider are the amount of damages the agency could assess against you, whether or employees have (or have previously alleged) similar claims, and if the employee has threatened litigation. If the employee has retained counsel and your company has not, you will be at a serious disadvantage.

Contracts and handbooks

When it comes to drafting employment agreements, severance contracts or even employee handbooks , having an attorney review them can help prevent the inclusion of troublesome language that could cause you problems in the future. An experienced lawyer knows what language the court looks for and can help protect your best interests by ensuring the right terminology is being used.

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Signs you need an Employment Attorney – Part 1

Mon, 23 May 2016 08:00:00 GMT

So, how do you know which situations warrant a call to your employment lawyer and which don’t? After all, you don’t want to pay legal fees for every employment decision you have to make. Below are a few examples of when you should consider involving your attorney:

Firing an employee that may sue

When you have an employee that you believe is litigious, you should seek legal advice prior to firing him or her. Even when the decision to fire is legitimate – such as the employee’s misconduct, performance issues or other bad behavior – your attorney can help you develop a strategy that will lower the risk of a lawsuit against you.

If the employee has an employment agreement (express or implied) that restricts your right to fire, you should have an attorney involved. It is also important to involve your lawyer if the employee has benefits or retirement that is due to vest soon, has recently filed a claim or complaint with your HR department or a government agency, or the worker has access to your company’s trade secrets.

Classifying employees

How an employer classifies its employees impacts its workforce, which creates the potential for increased liability if the classification is incorrect. Thus, you should consider seeking advice from an employment attorney prior to classifying employees as exempt or non-exempt or determining a group of workers are independent contractors instead of employees.

Other decisions that impact numerous employees

When an employer makes a decision that will affect numerous employees, such as layoffs or changes to employee benefits, it is wise to seek legal counsel prior to taking such action. Your lawyer can assist you with avoiding certain mistakes that could lead to very negative consequences for your company.

The above are just a few examples of issues an employment attorney can help you with. Be sure to read our next blog which discusses a few other issues that warrant contacting your lawyer. Obtaining the right advice from the start can significantly increase the likelihood of your business being a success. Contact The Swenson Law Firm for help.

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Keeping Your Entrepreneurial Spirit Alive

Thu, 19 May 2016 08:00:00 GMT

One of the contributing factors to burnout is going to the same place, with the same view, every day. Monotony of doing the same thing over and over can lead to burnout. If you are getting stuck in the same pattern each day, it is time to shake things up. It can be something as simple as rearranging the furniture in the office to working from a coffee shop for a while. Changing your scenery and your routine can help lead to a fresh perspective and new ideas.

It is also important to find an outlet for your frustrations and stress. Venting to your spouse or friends can be helpful, but it isn’t something you want to do every day. Thus, it is beneficial if you set aside time each day to do an activity that is just for you. Whether it is exercising, writing, painting, meditation, singing or any other healthy outlet that allows you to get your emotions out, it can help prevent burnout.

Finally, remember to take baby steps. If you start focusing on all the thousands of tasks you need to get done, you will feel overwhelmed. Be present in the moment. Worrying too much about the future can be detrimental. Tackle the things that you need to get done now, and trust that the future will take care of itself. Worrying and obsessing about things you cannot deal with right now will certainly lead to burnout.

The most important tip is to recognize when you are starting to feel burned out and take action. You might be surprised at how even small changes can help. And remember, if you need help with legal matters, we can assist you.

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IP Issues in Mergers & Acquisitions

Tue, 17 May 2016 08:00:00 GMT

If you are the selling company, it is imperative that you involve your IP attorney in the transaction. He or she can help anticipate the IP-related issues that may arise in order to help ensure the sale is a success. For example, the seller should prepare a list of all IP that is relevant to the seller’s business. Below are a few examples:

Due to the sensitive nature of the above information, many sellers choose to house the above documents in a protected virtual data room or a monitored physical room on the selling entity’s premises. Gathering the IP-related information can be time-consuming, so you should begin the process as soon as possible in the sale process.

The above discussion is just one example of intellectual property issues an attorney can help you with when selling or acquiring a company. Obtaining the right advice from the start can significantly increase the likelihood of the transaction being a success. Contact The Swenson Law Firm for help.

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Interview Questions Employers Should Avoid

Fri, 13 May 2016 08:00:00 GMT

So, how do you ask the right questions to elicit what a person loves to do and what they are good at? Consider the following tips:

Interviews are your best opportunity to determine if the candidate for the job will be an engaged employee. Consider the above tips and how to ask questions that get the answers you really need.

Contact us today to schedule your initial consultation. The attorneys at The Swenson Law Firm provide a variety of business law services to entities of all sizes.

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“Better Burger” Trademark Sought by Chipotle

Wed, 11 May 2016 08:00:00 GMT

Chipotle is once again in the news for its recent trademark application for a new burger chain. The company filed a trademark application for “Better Burger” on March 11, 2016. The trademark is categorized under “restaurant services; take out restaurant services; catering services; bar services; providing of food and drink.” It has not yet been approved by the U.S. Patent and Trademark Office.

“They believe the ‘food with integrity’ mantra will work with other cuisines,” said RJ Hottovy , a senior restaurant analyst at Morningstar. “What they’re trying to do is diversify their brand portfolio more than anything else. What they’ve said with other concepts is the ‘Chipotle way’ of doing things translates beyond Mexican cuisine.”

This isn’t the first time Chipotle has branched out from serving Mexican food. It also has a chain called “ShopHouse,” which serves Southeast Asian-inspired food and the consumer selects rice, noodles, or a salad, adds a meat or tofu, plus numerous other ingredients. ShopHouse has 14 locations in the United States.

Chipotle also owns a majority interest in “Pizzeria Locale,” which has four restaurants in Cincinnati.

It will be interesting to see how the “Better Burger” trademark application plays out and if it helps Chipotle improve its brand.

If you need assistance with registering a trademark or help handling opposition to your trademark application, contact the legal team at The Swenson Law Firm to schedule an initial consultation.

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3 Common Legal Risks Businesses Should Avoid

Fri, 29 Apr 2016 08:00:00 GMT

The following are three of the most common legal risks a business owner should avoid in order to safeguard the best interests and future of your business:

The above are a few examples of common issues new businesses face. To discuss these or other legal pitfalls to avoid, contact our office to schedule an appointment. The attorneys at The Swenson Law Firm provide a variety of business law services to entities of all sizes.

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Alternative Dispute Resolution Clauses

Wed, 27 Apr 2016 08:00:00 GMT

Type of ADR

There are several different types of ADR, but the two most commonly used are mediation and arbitration. Both mediation and arbitration are more casual, flexible and affordable than litigation.

Mediation involves using a neutral, third-party to serve as the mediator to resolve the dispute. The parties can agree to the mediation being binding or non-binding. The sole function of the mediator is to facilitate negotiations, but the parties are ultimately in control of whether a settlement can be reached.

Arbitration involves the parties agreeing to resolve their disputes by using a neutral, third-party arbitrator. A panel of arbitrators can also be used. Arbitration is binding and it is a substitute for going to court. In fact, a hearing is held before the arbitrator and a ruling is rendered. In certain instances, the arbitrator’s decision may be appealed.

Specifics

Using ADR is an effective way to avoid litigation. It is important for your contract to cover as many details as possible regarding how the ADR process will occur, such as:

Including an ADR provision in your agreements requires planning, but it is time well-spent because it can save you a substantial amount of money if a contractual dispute arises.

The above are just a few examples of issues an attorney can help you with when drafting business contacts. Obtaining the right advice from the start can significantly increase the likelihood of your business being a success. Contact The Swenson Law Firm for help.

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Actions Minority Interest Owners can take to Protect Themselves

Mon, 25 Apr 2016 08:00:00 GMT

Laws governing corporations and limited liability companies provide business owners nearly unlimited discretion in determining how to run the company and what the rights of owners should be. Thus, it is essential for an owner of a minority interest to negotiate as many protections as possible from the beginning.

A few of the factors you should consider when purchasing a minority stake in a business include:

Discussing the above topics with your prospective business partners can ensure that everyone is on the same page and you know what you are getting yourself into. Make sure you get all agreements put into writing.

If you are worried about the cost associated with hiring an attorney to properly document your agreement, you should consider how much it can save you in the future if it avoids litigation. A seasoned business attorney can help you anticipate problems you may face and how to handle them in your negotiations. The more unequal the partners, the more important it is to have attorneys involved.

Owning a minority interest in a business can be valuable, especially when the business is sold. You can financially gain from a small investment that has substantially grown over time. However, if the majority owner is difficult and uncooperative, it can put your investment in jeopardy. Let us help you protect your interests by negotiating on your behalf and drafting an Operating Agreement that protects you.

The Swenson Law Firm is located in Sacramento County and we proudly serve businesses of all sizes from all over the State of California. Contact us today to learn more about how we can assist you. With our years of complex business trial and litigation experience, we are an effective, efficient and affordable choice in representing you at the bargaining table and in the courtroom.

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Issues Minority Interest Business Owners Commonly Face

Thu, 21 Apr 2016 08:00:00 GMT

Contact us today to schedule your initial consultation. The attorneys at The Swenson Law Firm provide a variety of business law services to entities of all sizes.

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Is your Non-Compete Agreement being Violated by Social Media Posts?

Tue, 19 Apr 2016 08:00:00 GMT

If you consider LinkedIn , the site created to promote networking between professionals, a former employee who posts where his or her new job is could inadvertently violate a restrictive covenant. Additionally, if the employee signed a non-solicitation agreement, the former employer will have concerns that the employee’s posting could persuade key customers or clients to contact the employee at the competitor’s office. Worse, the employee’s announcement of his or her change of employment could lead to the loss of business for the prior employer. The Internet allows things to move quickly and what constitutes a solicitation is often unclear.

What can employers do? Consider drafting your restrictive covenants to mention the use of social media specifically. In other words, notify the employee that he or she should be careful with social media posts after leaving your employment. This type of notification provides the employer with more leverage if a subsequent dispute arises. Otherwise, without mentioning social networking in your employee agreement, it provides the employee the ability to argue that the prior employer is over-reaching in trying to control post-employment activities.

Only time will tell on how the courts will figure out the relationship between social media, non-compete agreements and non-solicitation contracts. Every case has unique facts, but the main focus will be on what is reasonable. The courts will look at whether the restrictions placed on the prior employee are reasonable and aimed solely on protecting the employer’s interests.

If you need assistance with drafting restrictive covenants, contact the legal team at The Swenson Law Firm to schedule an initial consultation.

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Minority Partners: Can they be Fired From a Partnership?

Fri, 15 Apr 2016 08:00:00 GMT

If the agreement between the partners includes a provision outlining the procedures for terminating a partner, it is important to follow the procedures precisely. If the agreement details the types of actions that can result in termination, confirm that you have evidence supporting the fact that the partner took such actions. If there is notification and voting requirements to enact the termination, follow them exactly. The failure to follow the requirements set forth in the partnership agreement for terminating a partner will likely result in costly litigation.

When a partner is removed from a business, his or her equity interest in the company must be purchased. Even if the remaining business partners forced the minority partner out of the company, they have an obligation to buyout the fired partner’s interest. A partner’s equity interest refers to his or her original investment in the company, plus any capital interest.

If the entity does not have a valid partnership agreement authorizing the partners to terminate another partner, it may be necessary to file a lawsuit to remove the unwanted partner. This type of litigation can be expensive, even if the minority partner embezzled or committed other unauthorized or illegal acts. It can be difficult to legally remove a business partner from a company.

Our business attorneys handle partnership disputes and we can help you. Whether you need assistance negotiating a settlement or filing a lawsuit, we stand ready to protect your best interests.

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Considerations in Litigating Partnership Disputes

Wed, 13 Apr 2016 08:00:00 GMT

Conferring with a business attorney does not mean that you must file a lawsuit. However, if your partner is embezzling or otherwise misappropriating company money or assets, you should take immediate and aggressive action. The quicker you take measures to stop the illegal behavior, the more likely you can save your company and reduce your overall legal expenses.

When a partnership disputes involves an imbalance of control, it often results in the partner that has more control over the entity locking out the other partner. The partner that is being shut out must consider obtaining an injunction from the court. The court can order the partner in control to stop taking certain actions as well as rule that the shut out partner must be allowed back in the door. This can significantly improve your leverage in negotiations.

Similar to other types of disputes, partners should try to resolve their differences through settlement rather than litigation. Going to court can be time-consuming, expensive and uncertain. Thus, as long as the company is stable, no partners are misappropriating company assets, and no partners are being “locked out,” settlement discussions should be the preferred strategy.

If you are considering filing a lawsuit against a partner, let us review your partnership agreement, bylaws and corporate agreements. We can help you understand your rates and develop a strategy for dealing with the dispute.

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Contents of an Effective Employee Handbook

Mon, 11 Apr 2016 08:00:00 GMT

Although every employee handbook should be drafted to specifically meet the needs of the unique business involved, below are a few areas that should be covered:

Mission Statement

Don’t overlook the importance of setting forth your company’s goals and mission. Employees who understand and relate to your business mission statement will feel ownership in its future. The mission statement doesn’t have to be lengthy or fancy.

Policies

Employment law covers a broad spectrum of areas. Your employee handbook must do the same. It should discuss discrimination, sexual harassment , types of leave (sick days, vacation, etc.), dress code, benefits, disciplinary procedures, and a variety of other similar matters.

One topic that employers often forget is workplace bullying. While having a policy against violence in the workplace may not prevent it from occurring, it will put all employees on notice that bullying will not be tolerated and all reports will be taken seriously. The handbook should outline the process employees should follow to report workplace violence, as well as how the company will handle investigations of complaints.

Disclaimer

To avoid confusion and claims by employees for breach of contract, your handbook should clearly state that it does not constitute an employment contract. It should specifically detail the nature of the at-will nature of employment of all employees, unless they are specifically excluded in writing.

Social Media

Your employees will most likely be active on social media sites, so it is important for your handbook to cover employment matters that may arise from their posts on such sites. For instance, the handbook should clearly prohibit posting of your business’s confidential or non-public information.

Dispute Resolution

If an employee has a dispute with your company, the handbook should detail the process that must be followed to report it. The process may begin with the employee submitting an internal grievance notification. This not only provides the employer the chance to deal with the matter internally, it also demonstrates to the employee that management cares about them.

The above are just a few examples of the topics that should be covered in an employee handbook. Obtaining the right advice from the start can significantly increase the likelihood of your business being a success. Contact The Swenson Law Firm for help.

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Avoiding Business Partnership Disputes – Part 2

Thu, 07 Apr 2016 08:00:00 GMT

If you are interested in learning more about preventing disputes with your partner, contact the legal team at The Swenson Law Firm for assistance.

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Avoiding Business Partnership Disputes – Part 1

Tue, 05 Apr 2016 08:00:00 GMT

Below are a few factors to consider when trying to avoid partnership disputes from the start of your business:

Our next blog will discuss other factors to consider when starting a business with a partner, but if you are interested in learning more about preventing partnership disputes or how we can assist you with your business-related needs, contact the knowledgeable lawyers at The Swenson Law Firm to schedule an appointment.

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Types of Employment Law Disputes

Fri, 01 Apr 2016 08:00:00 GMT

Wrongful Termination

California law presumes that employment is “at will,” unless clearly shown otherwise. This means that an employer (or employee) can generally terminate the relationship with our without cause. The law also provides certain exceptions to this general rule, such as it being illegal to fire an employee based upon a protected characteristic such as gender, age, race, religion, orientation or any other class. It is also illegal to terminate an employee in retaliation for reporting illegal activity ( whistleblower claims ). An employee that has been wrongfully terminated has grounds to file a lawsuit against the employer and recover damages.

Wage Disputes

When an employer refuses to pay an employee for work that has been performed, it can lead to a wage dispute. For example, an employer cannot refuse to pay your for wages you deserve, such as providing a work-free meal break or for overtime work that has been performed.

Sexual Harassment/Hostile Work Environment

The workplace is one of the most common places where individuals are sexually harassed . This includes any form of unwelcome sexual conduct, including sexual advances, demands for sexual favors in exchange for continued employment, unwanted touching, or even the use of inappropriate language in the workplace. If a worker asks the harasser to stop the sexual activity and it continues anyway, the behavior is illegal.

Employers are entitled to work in a safe environment free from discriminatory and harassing behaviors. When an employee has been subjected to discrimination, harassment or retaliatory behavior it constitutes a hostile work environment.

Severance Agreements

When your employer offers you a severance agreement, it is imperative to have an attorney review it to determine your rights. Having a lawyer involved can help ensure that your rights are protected and you obtain the maximum benefits and compensation.

Contact us today to schedule your initial consultation. The attorneys at The Swenson Law Firm provide a variety of business law services to entities of all sizes.

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Buy-Sell Agreements: Funding & Payment Terms

Wed, 30 Mar 2016 08:00:00 GMT

The three primary ways to fund the purchase of an ownership interest are by using the proceeds from an insurance policy, money from savings, or an installment payment plan. It is also possible to use a combination of these options. It should be noted that insurance policies bought pursuant to a buy-sell agreement are not deductible.

Using insurance policies is typically easier to implement when there are only a few owners. If there are numerous owners, it can get complicated quickly. Thus, it may be necessary to obtain professional help to determine if this is the best strategy for your company.

When using a payment plan as an option, it should be fair to both the buyer and the seller. The terms will have to be tailored to fit where the funds to purchase the business interest are coming from. If the proceeds of an insurance policy will be used for the buyout, the agreement should allow for the price to be in whole or in part as soon as the insurance proceeds are received. If personal funds are being used to fund the buyout, the most common payment terms include a lump sum payment, installment payments, a down payment plus installment payments, a customized payment schedule, or interest-only payments. A customized schedule could be anything from payment deadlines coinciding with bonus payments to anything else the parties agree upon. If the purchaser is making interest-only payments, the deadline for the purchase price being paid in full should be clearly set forth.

In sum, a buy-sell agreement can be drafted to meet your business’s unique needs. It is important to negotiate the terms as soon as possible while all the owners are on good terms.

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Buy-Sell Agreements: Calculating the Purchase Price

Mon, 28 Mar 2016 08:00:00 GMT

Below are a few of the methods used to determine the purchase price of a departing owner’s interest in a business:

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Buy-Sell Agreements: The Many Benefits

Thu, 24 Mar 2016 08:00:00 GMT

The three primary types of buy-sell agreements are:

Whatever type of buy-sell agreement you decide to use, there are many benefits provided by it, including:

There are many other factors to consider when drafting a buy-sell agreement. Be sure to read our next two blogs which discuss this type of contract further.

Contact us today to schedule your initial consultation. The attorneys at The Swenson Law Firm provide a variety of business law services to entities of all sizes.

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What is a “Material Breach” of a Contract?

Tue, 22 Mar 2016 08:00:00 GMT

If you are interested in learning more about draft solid business contracts, contact the legal team at The Swenson Law Firm for assistance.

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Ways a Business Attorney Can Save You Money

Fri, 18 Mar 2016 08:00:00 GMT

Selecting the Proper Legal Structure

One of the most important decisions you will make for your company is what type of legal structure it will operate under. Each type of entity has its owns advantages and disadvantages, so a business attorney can help you understand which one will benefit you the most by reducing your personal exposure to liability and minimize taxes.

Contracts

Your business operations will be governed by your written agreements. Many contracts are lengthy and confusing, so it can feel overwhelming to take the time to read and understand them. Your business attorney will ensure that your written agreements are drafted to protect your best interests. A seasoned transactional lawyer will help anticipate problems that may arise and assist you with taking preventative measures, which will reduce the likelihood of expensive and time-consuming litigation in the future.

Employees

The employee-employer relationship is governed by a wide variety of laws and regulations. Before hiring your first employee, your attorney can help you establish policies and procedures that will keep your company out of trouble. This includes establishing employment practices for hiring, firing, providing benefits, vacation time, and numerous other matters that are governed by federal and state laws. Failing to follow certain employment laws can result in your company being sued or being assessed penalties by government agencies.

The above are just a few examples of the areas where a business attorney can help you avoid costly litigation. Obtaining the right advice from the start can significantly increase the likelihood of your business being a success. Contact The Swenson Law Firm for help.

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Advantages of Registering Trademarks with the USPTO

Wed, 16 Mar 2016 08:00:00 GMT

If a business fails to register its vital IP, it can lead to competitors stealing your ideas and profiting from them. Below are a few of the benefits your company gains by registering with the United States Patent and Trademark Office:

If you have a business with intellectual property you need to protect, we can help you file an “intent to use” trademark application.

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The Importance of Written Sales Commission Agreements

Mon, 14 Mar 2016 08:00:00 GMT

So what constitutes a commission? Short-term productivity bonuses and bonus and profit-sharing plans are specifically excluded from the definition of “commissions.” A commission occurs when the employer promises to pay a fixed percentage of sales or profits as compensation for work. Because this definition has some ambiguities, employers should protect themselves by having a carefully drafted bonus plan as well as a commission plan. This will help reduce misunderstandings and disputes with your employees.

It should be noted that since most employees are “at will,” it is important to include a provision in the written sales commission agreement confirming that the employee is “at will.” It should be made clear that the employee’s at-will status is not altered because a written contract is in place.

The agreement should set forth the calculation for determining commissions. This includes defining what constitutes “sales” and “profits.” For example, will returns, refunds and discounts be subtracted from the amount of the sale? In order to provide your employees with full disclosure, many employers choose to provide a summary of how commissions are calculated with each check.

A final issue to consider is the timing of when the commission is considered to be earned. This is important because once a commission is earned, it becomes a wage that is due and payable to the employee. Is the commission earned when a customer places a purchase order? When the company issues an invoice? Once the goods have been shipped? When the customer pays for the goods or services?

There are many factors that must be considered when drafting commission agreements with employees. Let us help. Contact us today to schedule your initial consultation. The legal team at The Swenson Law Firm provides a variety of business law services to entities of all sizes.

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Tips for Drafting an Effective Licensing Agreement

Thu, 10 Mar 2016 08:00:00 GMT

Below are a few of the main points you want to cover in a licensing agreement.

Scope of License

The scope of license must be set forth very clearly. You are only granting limited rights to the other party since you are retaining ultimate ownership rights, so the boundaries must be clear. Of course, you don’t want to be too restricting because you want others to want to use your product.

The scope of license must specify whether it is an exclusive or nonexclusive license. Most licenses are nonexclusive, which means you can sell the right to use your product to multiple parties.

Payment for License

A license agreement must set forth the terms that control the revenue streams by the licensed product. This includes either a one-time license fee, recurring payments or royalties, or both. A license agreement may also include ongoing maintenance fees.

Other Terms

There are many other terms that must be included in a license agreement, including:

There are a variety of issues that must be considered when creating a license agreement. Let us help. If you are interested in learning more about licensing agreements or how we can assist you with your business-related needs, contact the knowledgeable lawyers at The Swenson Law Firm to schedule an appointment.

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Using Software Licensing Agreements

Tue, 08 Mar 2016 08:00:00 GMT

The term “ intellectual property ” is used to describe a variety of different things. In general, intellectual property (IP) is some form of intangible property that originated or was created by an individual’s mind. Common examples include artwork, music, computer software, literary pieces, inventions and designs. Because IP can be quite valuable, it is important to take steps to protect it if you allow other parties to have access to it. One way to protect your IP is to grant a license or contractual right for the other party to use it, but permits you to maintain control over the IP.

The party that holds the rights to IP is called the licensor and the party seeking permission to use or access the IP is the licensee. In exchange for access to the licensed IP, the licensee typically pays money to the licensor.

Before you can grant a license to another party, however, you must protect your exclusive property rights. The safest means for protecting your IP is to register for all rights that are applicable in your case, such as:

It is important to work with an IP attorney to protect and manage your rights. The registration process with the U.S. Patent and Trademark Office or the U.S. Copyright Office can be rigorous and confusing. However, once you have secured your rights to the intellectual property, you can start licensing its use to other parties and making money. Be sure to read our next blog titled “Tips for Drafting an Effective Licensing Agreement.”

If you need assistance registering your IP or creating a licensing agreement, we can help. Contact the legal team at The Swenson Law Firm to schedule an initial consultation.

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Confronting Your Difficult Employees

Tue, 01 Mar 2016 08:00:00 GMT

When it is time confront a difficult employee, you should consider the following:

Handling a difficult employee can be challenging, but we are here to help. The Swenson Law Firm is located in Sacramento County and we proudly serve businesses of all sizes from all over the State of California. Contact us today to learn more about how we can assist you with matters such as trademarks, defending lawsuits, business formation, contract negotiations, hiring employees, and protecting your intellectual property. With our years of complex business trial and litigation experience, we are an effective, efficient and affordable choice in representing you at the bargaining table and in the courtroom.

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Does your Company have an Exit Strategy?

Fri, 26 Feb 2016 08:00:00 GMT

Exit Strategy Basics

Your entity’s exit strategy should be set forth in its Operating Agreement, bylaws, or other formal and binding contract. The basic elements of an exit strategy include:

Who Needs an Exit Strategy?

Don’t make the mistake of thinking only large companies need buy-sell agreements. The reality is that an exit strategy may be even more critical for small businesses where the business itself is the owner’s more valuable asset. Creating a plan for the future of your biggest asset is imperative to avoid financial and emotional distress.

What are the Exit Options?

Depending on the type of business entity, your buy-sell options can vary. Generally, the following are the four most common ways an owner can exit the business:

The issue of how to value a business is a topic for another blog, so please check back or contact us to learn more. Obtaining the right advice from the start can significantly increase the likelihood of your business being a success. Contact The Swenson Law Firm for help.

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Common Mistakes Made by Entrepreneurs

Wed, 24 Feb 2016 08:00:00 GMT

It is important to accept the fact that you will make a mistake….or several along the way. We are all human and therefore it is inevitable. With this in mind, how you respond to your mistakes is crucial. Don’t let one minor set-back knock you down. With determination and hard work, you can overcome almost any obstacle. Consider the following:

If you are interested in learning more about protecting your business and yourself, contact the legal team at The Swenson Law Firm for assistance.

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Employers, Follow Your Own Procedures!

Mon, 22 Feb 2016 08:00:00 GMT

One of the most critical policies an employer should follow is the one governing the dismissal of an employee. Below are a few tips for how to avoid unfair dismissal claims by employees:

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10 Important Tips for Employers

Thu, 18 Feb 2016 08:00:00 GMT

The above are just a few examples of employment matters one of our attorneys can help you with when starting a new company or updating existing policies. Obtaining the right advice from the start can significantly increase the likelihood of your business being a success. Contact The Swenson Law Firm for help.

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Why your Company Needs Non-Disclosure Agreements

Tue, 16 Feb 2016 08:00:00 GMT

One of the easiest and most effective ways an employer can protect proprietary information is to use non-disclosure agreements with all business partners, employees, vendors, and other third parties that are granted access to it. This type of contract may also be called a “confidentiality agreement.” It allows your company to safeguard its confidential information by contractually binding the party that signs it to keep your proprietary information protected and to only use it for the agreed-upon purposes as set forth in the contract. Similar to other types of agreements, a non-disclosure agreement outlines the remedies that your business will be entitled to recover if the terms of the contract are breached . The remedies available in a non-disclosure agreement often include both monetary damages and injunctive relief.

A confidentiality agreement can be uniquely tailored to meet your specific needs, but some of the important provisions to include are:

When you require other parties to sign non-disclosure agreements, it sends the message to them that you are not only trusting them with something valuable, but also that you will pursue your legal options if they violate your trust. This knowledge can go a long way in protecting your company whether a lawsuit becomes necessary or not.

If you are interested in learning more about non-disclosure agreements or how we can assist you with your business-related needs, contact the knowledgeable lawyers at The Swenson Law Firm to schedule an appointment.

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Copyright Infringement Trial against Jay Z Begins

Fri, 12 Feb 2016 08:00:00 GMT

The attorney for the Egyptian composer’s heirs, Baligh Hamdi, argued that Jay Z and Timbaland infringed on the rights of Hamdi’s hit released in 1957 called “Khosara Khosara” in creating “Big Pimpin.’” The lawyer argued that Jay Z used Hamdi’s lovely melody and inserted his vulgar lyrics over it without permission. Jay Z’s lyrics are not at dispute in the lawsuit and his and Timbaland’s attorneys claim that they obtained the appropriate permission and rights to use “Khosara Khosara” on “Big Pimpin’.”

Timbaland, whose real name is Timothy Mosely, was present at the trial. Christine Lepera, informed the jurors that although he initially used some of Hamdi’s work because he believed it was royalty-free, but he later obtained the appropriate rights.

The Egyptian heirs’ attorney alleged that the defendant violated Hamdi’s “moral rights,” which is a legal concept that he claims is well-established in Egypt that would have required them to obtain the necessary authorization to use “Khosara Khosara” in a song that glamorizes a promiscuous lifestyle.

The defendants’ argued that “moral rights” were not at issue in the lawsuit and said evidence would demonstrate that Hamdi’s heirs had been paid for the use of Hamdi’s work into “Big Pimpin.’” Attorneys for Jay Z and Timbaland deny that their rap song used major elements of “Khorsara Khorsara,” and that much of it was simple and not copyrightable.

This is the second major lawsuit in Los Angeles involving claims that a hit song infringed on the rights of another artist. In March of this year, a federal jury entered a ruling that the song “Blurred Lines” by Pharrell Williams and Robin Thicke violated the copyright of Marvin Gaye’s hit “Got to Give It Up.” Gaye’s family was awarded a judgment in the amount of $7.4 million, but the judge later lowered the amount to $5.3 million.

If you are interested in learning more about copyright infringement, contact the legal team at The Swenson Law Firm for assistance.

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Major Music Piracy Website Owner Receives Prison Sentence

Wed, 10 Feb 2016 08:00:00 GMT

The websites were shut down in 2014. Ouprasith pled guilty to a single count of criminal copyright infringement. His punishment included 36 months in prison, with two years of supervised release, as well as forfeiture of profits and monetary penalties that totaled $100,000. He was let off easy compared to the maximum available sentence of five years in prison, forfeiture of profits, and monetary penalties up to $250,000.

Ouprasith’s plea included an admission that he illegally downloaded digital copies of music that he knew was protected by copyrights. He also urged other individuals to do it too. Ouprasith filled foreign servers with the pirated music so other parties could download the songs from his websites. He also profited from selling online advertising and subscriptions for quicker download times. Finally, Ouprasith admitted that he ignored complaints or pretended to remove copyrighted content from the websites when he received a complaint from the owner of the music.

“This sentence should send a message that operating a flagrantly illegal business that steals from others by engaging in criminal activity online has real consequences,” the RIAA executive vice-president for anti-piracy said in an e-mailed statement.

The Washington Post states that Ouprasith’s criminal sentence is the first in our country against the operator of a website storing pirated work via the cloud. However, it is predicted that the U.S. government is just getting started in its enforcement efforts and many more cases will be filed in the future.

If you need assistance with obtaining a copyright or registering a trademark, contact the legal team at The Swenson Law Firm to schedule an initial consultation.

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Can a Fake Twitter Account Constitute Identity Theft?

Mon, 08 Feb 2016 08:00:00 GMT

Plaintiff accomplished his postings by sending letters to his girlfriend who then posted the tweets. The officials at the jail discovered plaintiff’s social media activity when screening his outgoing mail. They placed plaintiff in a special housing unit under “administrative segregation” for 22 days.

An ADA was assigned to determine whether criminal charges could be brought against the plaintiff. A felony complaint was filed charging plaintiff and his girlfriend with identity theft, criminal impersonation and conspiracy. It alleged that the postings made Zamiara out to be a racist because they contained racially charged terms and the tweets appeared as if they were being made by him.

The criminal case hit a standstill when a motion to dismiss was filed. Monaghan claimed that the reference to “Frank” rather than “Michael” was a typo and he sought to amend the pleadings, but nothing further was done.

The matter was re-ignited when plaintiff was brought to court on unrelated criminal charges. A different ADA referred to the pending identity theft charges as a reason for why plaintiff should be denied access to judicial diversion. Eventually, a grand jury dismissed the identity theft charges.

Plaintiff (representing himself), years later, filed a variety of claims against several parties, including the ADAs. Most were dismissed, but the allegation of malicious prosecution remained. The court found this claim to be lacking as well due to:

If you are interested in learning more about identity theft or how we can assist you with your business-related needs, contact the knowledgeable lawyers at The Swenson Law Firm to schedule an appointment.

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Google Play Wins Lawsuit Over Hundreds of Unauthorized Bank Charges

Thu, 04 Feb 2016 08:00:00 GMT

The court examined the applicable statute of limitations under EFTA. The unauthorized bank account charges occurred April of 2013 through May of 2014. Harvey did not discover the prohibited charges until August of 2014 and filed the lawsuit April 15, 2015. Although there are few cases discussing the EFTA’s statute of limitations, the court determined that the time for the applicable statute of limitations began when the charges first started in 2013. As a result, Harvey was required to file her claims in April of 2014, so she was a year late in making her claims. Harvey’s legal team argued that each unauthorized charge to the bank account reset the clock, but the court rejected this argument.

Harvey also alleged that the statute of limitation period was tolled until she discovered the improper charges in August of 2014. However, the court rejected this argument reasoning that there were 1000 unauthorized charges. She had notice on her bank account statements and if she had exercised due diligence, she could have discovered them. She also could have seen the unauthorized charges by looking at her Google account.

To read the case in its entirety, please see Harvey v. Google , 2015 WL 9268125 (N.D. Cal. Dec. 21, 2015).

Contact us today to schedule your initial consultation. The attorneys at The Swenson Law Firm provide a variety of business law services to entities of all sizes.

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Motion Picture Association of America Wins $10.5 Million Lawsuit

Tue, 02 Feb 2016 08:00:00 GMT

According to the Hollywood Reporter , Paramount, Warner Bros, Universal, Columbia, Fox and Disney are member studios of the MPAA. Together they filed a lawsuit against the websites over several movies including Avengers: Age of Ultron . The MPAA filed copyright and trademark claims against “John Doe” and “XYZ Corporation” defendants and demanded an injunction against even “third parties providing services used in connection with any of the MovieTube Websites,” including website providers and social media platforms.

Numerous tech companies, led by internet giants such as Google, Yahoo, Facebook and Twitter, objected to the breadth of the injunction. They filed an amicus or “friend of the court” brief accusing the MPAA of trying to resurrect the Stop Online Piracy Act (SOPA).

MPAA’s demand for a preliminary injunction was withdrawn and then pursued with vigor when it requested a permanent injunction and $10.5 million in damages. The defendants shut down the websites, but were creating a new MovieTube site.

The New York federal court entered an order permanently enjoining the defendants from infringing on the MPAA’s movies and awarded a default judgment in the amount of $10.5 million. This amount was based on the 140 works that were at issue (which the studios claim is only half of what they claim they’re entitled), with statutory damages in the amount of $150,000 per infringement.

Because the MPAA has not identified who operates the MovieTube sites, collecting on the judgment is going to be difficult. The court order permits the MPAA to continue discovery into “third-party vendors providing services to Defaulting Defendants in connection with the MovieTube Websites,” which means subpoenaing service providers like Google and Twitter for service records.

If you are interested in learning more about trademark and copyright infringement, contact the legal team at The Swenson Law Firm for assistance.

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Bootstrapping your Business to Success

Fri, 29 Jan 2016 08:00:00 GMT

Bootstrapping your new venture is not easy, but it can be done. Let us help. The Swenson Law Firm is located in Sacramento County and we proudly serve businesses of all sizes from all over the State of California. Contact us today to learn more about how we can assist you with matters such as trademarks, defending lawsuits, business formation, contract negotiations, hiring employees, and protecting your intellectual property. With our years of complex business trial and litigation experience, we are an effective, efficient and affordable choice in representing you at the bargaining table and in the courtroom.

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Why you Should Work with an Attorney to Form your Business

Wed, 27 Jan 2016 08:00:00 GMT

The attorneys at The Swenson Law Firm will not only help you determine what is the best structure for your business, but we will also assist with the additional details that will establish a strong foundation to get your company off to a successful start. Contact us today to schedule your initial consultation.

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Avoid these Intellectual Property Mistakes

Mon, 25 Jan 2016 08:00:00 GMT

Don’t Presume you own the IP

Many employers make the mistake of assuming they own the IP created by their employees, but this is not always the case. Unless you have an agreement with your employees that sets forth that all rights to the IP created by your employees belongs to the company, the reality is that you may have very minimal, if any, rights to the IP.

IP Registration

It is imperative that you register your IP for patent, trademark or copyright protection. This is the most effective way to ensure that your competitors cannot copy your IP. Be aware that many scammers try to take advantage of entrepreneurs who are attempting to safeguard their IP but are unsure of how to do it. Make sure you work with a trusted business attorney to ensure you have the proper protection for one of your business’s most valuable assets.

Don’t Procrastinate

Don’t make the mistake of thinking you have plenty of time to develop an IP strategy. Just because you are the first person to create or invent a service or product does not mean you are protected unless you are the first to register. Therefore, it is important to apply to protect your IP as quickly as possible.

The above are just a few examples of issues an attorney can help you with when starting a new company. Obtaining the right advice from the start can significantly increase the likelihood of your business being a success. Contact The Swenson Law Firm for help.

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Producer of Bones Files Lawsuit Against Fox

Thu, 21 Jan 2016 08:00:00 GMT

Last fall, Rupert Murdoch, Lachlan Murdoch and Peter Rice, some of the top 21 ^st Century fox executives, joined the cast and crew of Bones to celebrate its 200 ^th episode. Sadly, the Murdochs and Rice are not as joyful due to the lawsuit Josephson filed against Fox network, parent of studio 20 ^th Century Fox Television.

In addition to claiming he was cheated out of profits, Josephson alleges he was “fraudulently threatened” by Rice and other executives into accepting a reduced license fee from Fox. He states that if he didn’t accept the lower license fee, he was threatened with immediate cancellation of Bones .

Josephson filed the litigation in Los Angeles Superior Court and, according to The Hollywood Reporter , sought unspecified damages for breach of contract, fraudulent inducement and several other claims.

Josephson has been with the television show for 11 seasons, which includes over 206 episodes. He alleges he discovered the book on which Bones is based and brought it to Fox. He also claims he casted Emily Deschanel and David Boreanaz as the stars, as well as served as the executive producer for every episode.

Josephson’s complaint alleges, among numerous other things that Fox underreported millions of dollars in revenue as revealed in an audit he requested in the initial seven seasons of the show. “Simply put, the audit uncovered a veritable mother lode of accounting chicanery and self-dealing,” his lawsuit claims. In sum, the complaint seeks damages for breach of contract, breach of the implied covenant of good faith and fair dealing, intentional interference with contract, unfair competition, fraudulent inducement, declaratory relief and accounting.

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Essential Legal Documents for Buying a Business– Part 3

Tue, 19 Jan 2016 08:00:00 GMT

The above list is not exhaustive, so to learn more, contact the legal team at The Swenson Law Firm to schedule an initial consultation.

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Essential Legal Documents for Buying a Business– Part 2

Fri, 15 Jan 2016 08:00:00 GMT

Be sure to read our next blog for more details regarding the documents needed when buying or selling a business. Contact us today to schedule your initial consultation. The attorneys at The Swenson Law Firm provide a variety of business law services to entities of all sizes.

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Essential Legal Documents for Buying a Business

Wed, 13 Jan 2016 08:00:00 GMT

Below are the primary legal documents that are typically included in the purchase of a business:

If you are purchasing only the assets of the existing business, the primary document that will govern the transaction is the Asset Purchase Agreement. If you are buying the entity the governing document is commonly referred to as the Purchase Agreement. Whatever it is called, this governing document outlines the numerous terms and conditions of the sale.

The purchase agreement often attaches all of the ancillary documents as exhibits to it. This allows the parties to agree to the form and content of the subordinate documents when they sign the purchase agreement, which significantly reduces the likelihood of further disputes regarding the transaction and helps ensure the transaction will close in a timely manner.

No two transactions are identical, so the above list is not exhaustive. There are numerous other documents that may be required to complete your purchase and some of the above may not be necessary. For example, it is wise to confer with a tax professional regarding what documentation should be included to ensure the taxes are properly handled.

The following two blogs will discuss each of the documents listed above in more detail. However, if you are interested in buying or selling a business, call us today to schedule an initial consultation. Obtaining the right advice from the start can significantly increase the likelihood of your business being a success. Contact The Swenson Law Firm for help.

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Annual Meetings for LLC Members

Mon, 11 Jan 2016 08:00:00 GMT

If you own a business that is incorporated as a LLC, it is important to confirm that your Operating Agreement requires annual meetings. If you need assistance drafting or revising your Operating Agreement to include this requirement, we can help. We can also provide guidance on how to properly conduct and document your annual meetings. Investing a small amount of money to comply with the annual meeting requirements could potentially save you a significant sum in the future.

If you are interested in learning more about Operating Agreements, annual meetings of LLC members, or how we can assist you with your business-related needs, contact the knowledgeable lawyers at The Swenson Law Firm to schedule an appointment.

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ESPN Seeks to End Libel Lawsuit

Thu, 07 Jan 2016 08:00:00 GMT

ESPN is now requesting the court render judgment in its favor due to Laurie’s changing story. According to the Hollywood Reporter , ESPN argues in its memorandum in support of a dismissal of the lawsuit that “Mrs. Fine has gone from claiming the Tape was doctored, to conceding it was authentic, to swearing that she was not discussing sex, to conceding that she was, but supposedly with a 17-year-old.” ESPN makes the claim that a judgment in favor of Laurie Fine would “make a mockery of the First Amendment.”

Ms. Fine’s response to ESPN’s claims alleged that ESPN had no basis for alleging that she had child abuse concerns. Laurie attacks the reporting methods used by ESPN and argues that the reporters should have listened to the FBI about the importance of reviewing the age of consent in New York.

In support of her argument, Ms. Fine produced ESPN’s editorial guidelines suggesting that prior to 2011, it was network policy to not report allegations of criminal activity unless the subject of the news report had been officially charged with a crime. Further, ESPN considered such reporting without criminal charges to generally be “defamatory” under these old guidelines.

ESPN has since revised its guidelines and removed the language cited by Ms. Fine. In 2012, ESPN allowed reports on criminal activities, even if formal charges had not been filed, as long as the ESPN report had “independent reporting from one or more credible sources that justifies making the story public.”

Contact us today to schedule your initial consultation. The attorneys at The Swenson Law Firm provide a variety of business law services to entities of all sizes.

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Sole Proprietorship versus Single-Member LLC

Tue, 29 Dec 2015 08:00:00 GMT

Formation

The main benefit of a sole proprietorship is that it is simple and inexpensive. The only requirement for a sole proprietorship is to confirm that the required licenses and permits have been obtained. In other words, the business and the individual business owner are essentially the same.

To form a LLC, the entity must be registered with the appropriate state agency. Articles of organization and a fee must be submitted as well. If there is more than one member in the LLC, you should have an Operating Agreement . To learn more about Operating Agreements, click here.

Funding

In order for your business to be a success, you must have funding. The funding for a sole proprietorship is the business owner’s personal funds or loans. It is often difficult for a sole proprietor to obtain a business loan and you will usually be required to execute a personal guaranty for the loan, which means you are personally liable to repay it.

The LLC structure permits the owners to add members. This allows them to pool their resources, which makes it easier to qualify for a business loan if necessary.

Taxes

The sole proprietor’s income is taxed on the individual’s income tax return for federal taxes.

The LLC is given a “pass through” tax treatment which allows the profits from the business to be taxed on the income tax return of each member. It is important to confer with a tax professional to understand how your state or local taxes will impact your business’s taxes.

Management

If you love the idea of being your own boss and not having to answer to anyone, both the sole proprietorship and single-member LLC are good options for you. However, if you do not have experience in running a business or you do not have the skills necessary to handle all aspects of the business, you may want to consider having a partner.

Personal liability

The individual owner and the business are considered the same in a sole proprietorship. As a result, the owner is personally liable for all debts and obligations of the business. Your personal assets could be at risk to satisfy business debts.

The LLC affords its members some protection from personal liability for business debts because a LLC is considered a separate and independent entity. In most cases, the only personal liability a LLC owner has is the financial contribution made by the owner to the LLC. The circumstances where the owner of a LLC is personally liable for business debts involve a personal guaranty or if the owner’s acts caused harm to another party.

Contact us today to schedule your initial consultation. The attorneys at The Swenson Law Firm provide a variety of business law services to entities of all sizes.

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Factors to Consider in Forming a New Company – Part 2

Wed, 23 Dec 2015 08:00:00 GMT

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Factors to Consider in Forming a New Company – Part 1

Mon, 21 Dec 2015 08:00:00 GMT

The above are just a few factors to consider when forming a new business. Be sure to check out our next blog titled “Factors to Consider in Forming a New Company – Part 2” for more items you should think about with your start-up entity.

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Is it Time for you to Start a New Company?

Thu, 17 Dec 2015 08:00:00 GMT

Can I focus on the business?

If your life is going through a multitude of changes right now, it may not be the best time to start a new business venture. You want to be able to give your start-up company your best and you will have to be flexible. It is essential that you are honest with yourself about whether it is the right time for you to take on a new challenge.

Can you sell?

All new businesses must be marketed or sold to others. Whether your company sells a product or provides a service, you must have a certain level of salesmanship skills in order to succeed. You must convince others to invest in your company or persuade consumers to buy what you are selling. It is imperative that you have the confidence to sell yourself and your business to others.

Do you have sufficient funding?

One of the main reasons most people do not become their own boss is the lack of sufficient funding . Starting your own business involves financial risk. For many individuals, it means keeping their full-time job while starting their new company on the side. You may be required to obtain investors or take out a loan in order to have adequate funding. Thus, many financial advisors recommend that entrepreneurs have six months to two years of savings in order to cover their living expenses before starting a business. Each individual must decide where their own comfort level is and when they are ready to jump in with both feet.

Do you have help?

Don’t make the mistake of thinking you can do everything on your own. Attempting to figure everything out without help will be a waste of time and money. Take advantage of the numerous resources available to small business owners. Learn from other people’s mistakes so you face fewer obstacles on your journey.

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Tips to Help Make Your Partnership Successful

Tue, 15 Dec 2015 08:00:00 GMT

When thinking about who would make a good partner, you may want to consider somebody who has a different skill set from you. In other words, partner with somebody who can bring something to the business that you do not provide. This will allow your company to take advantage of different points of view, approaches and thought processes. You want to work with somebody you enjoy and get along with, but differing approaches to problems often lead to great results. Just make sure you communicate and are certain that you will be able to work together in an effective way.

Communication is one of the key elements to a successful partnership. You must choose a co-founder that you trust to make smart decisions for the company. It is also important that the other person is motivated and willing to work as hard as you to ensure the success of the business. You should discuss what tasks each of you will handle in order to be more efficient. You don’t want to duplicate your efforts, so each of you must have an understanding of what the other is doing and what is going on with the company at all times.

Developing a written business plan that sets forth the goals of your partnership can be advantageous. It allows you to discuss your expectations and try to predict any obstacles you will face. Developing a business plan opens the door for the partners to talk about what is expected regarding each partner’s time, responsibilities and any financial commitments.

In short, partnering with another individual can be extremely beneficial, as long as it is handled correctly. Don’t assume that because you are friends that you will be able to work through any problems that arise. Having written agreements in place will not only protect your relationship, but also your business.

The attorneys at The Swenson Law Firm are available to answer your questions regarding starting a business. Let us provide you with the advice and guidance you need. Obtaining the right advice from the start can significantly increase the likelihood of your business being a success. Contact The Swenson Law Firm for help.

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How to Obtain Seed Money for your Start-Up

Fri, 11 Dec 2015 08:00:00 GMT

One of the primary concerns when starting a new business is funding. You must create a strategy for obtaining your seed money and funding for your initial operations. Ensuring you have sufficient funding for your start-up company can be one of the most challenging and frustrating aspects of a new business.

It is important to be thorough when calculating the amount of start-up capital you will need. This includes costs for inventory, equipment, rent/mortgage, supplies, salaries, insurance, and numerous other expenses that a business must face in the first year of operations. In many instances, you will need seed money to pay for the costs of researching or planning before the doors to your business are even opened.

Where should you obtain your funding from? Below are a few considerations:

The attorneys at Swenson Law Firm will not only help you determine which entity structure is the best for your business, but we will also assist with the numerous other factors that will help ensure your company gets off to a successful start. Contact us today to schedule your initial consultation. The attorneys at The Swenson Law Firm provide a variety of business law services to entities of all sizes.

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Tips on Forming a Corporation

Wed, 09 Dec 2015 08:00:00 GMT

meeting of team of business people

If you are starting a new business and you are thinking about setting it up as a corporation, you should confer with a knowledgeable and experienced business attorney . The structure you use for your company will impact every aspect of it, so it is essential that you pick the most beneficial type of entity available to you. Below are a few considerations when forming a corporation:

Choosing a Name

Every state has its own rules for naming a corporation, but a few general rules include:

It is essential that you research the proposed business name. In fact, you should strongly consider paying a small fee to reserve your corporate name while you are completing your filing to ensure you do not lose it. You should also confirm that your company name will not infringe on another party’s trademark.

Appointment of Directors

A board of directors must be appointed to make the financial and policy decisions for the corporation. In most cases, the directors are appointed by the initial owners or shareholders of the corporation before any business is conducted. An owner can be a director, but director does not have to be an owner.

Articles of Incorporation

To register your business with the state, a corporation must file articles of incorporation which are also referred to as the certificate of incorporation. If there are other names associated with your corporation, you should file a fictitious name statement also.

A corporation should have a set of bylaws which outline the rules which govern the internal operation of the business. You should consult with a business attorney for assistance in drafting bylaws.

If there is more than one shareholder in the corporation, it is important to have a shareholder’s agreement. This type of contract sets forth what happens if an owner dies, becomes disabled or leaves the corporation.

Other Duties

The above are examples of the initial tasks that must be handled when forming a corporation. However, there are a variety of other things that should be done such as having the first meeting of the directors, issuing shares of stock and determining if your business is eligible for exemptions from securities registration requirements. You should also verify that your corporation has obtained the required licenses and permits to legally operate the business.

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What is Unfair Trade Practice?

Mon, 07 Dec 2015 08:00:00 GMT

Young and beautiful businesswoman tired from work in the office.

You have probably heard that it is illegal to conduct an unfair trade practice, but do you really understand what this means? Generally speaking, it is any trade practice used for the purpose of selling or supplying goods or services using an unfair or deceptive practice. Below are a few examples of unfair trade practices:

False Representations

A false representation can be made orally or in writing. Examples of common false representations include:

False Offer of Bargain Price

When an advertisement represents that goods or services are offered at a bargain price, there must be a true intent to offer or sell them at that price for a reasonable period of time and with a reasonable quantity available. A “bargain price” is the price that is set forth in the advertisement or the price at which a reasonable person reading or seeing the advertisement would believe to be the better price than the price which such goods are usually sold.

Free Gifts Offer and Prize Schemes

It is an unfair trade practice to offer a gift or prize when goods are purchased if there is no intent to provide the additional gift or prize. It is also illegal to represent that an additional good is being offered as a free bonus when the price of the bonus good is wholly or partly covered by the price of the original item being sold.

Non-Compliance of Prescribed Standards

The law prohibits the sale of consumer goods if there is knowledge or reason to think that such goods do not comply with the standards governing the goods performance, design, construction, or packing, as is necessary to reduce or prohibit risk of injury to the consumer using such goods.

Hoarding, Destruction, Etc.

It is an unfair trade practice to hoard or destroy goods, or refuse to sell goods or provide services, with the intent to increase the cost of those or similar goods or services.

If you are interested in learning more about unfair trade practices or you have compliance questions, contact the legal team at The Swenson Law Firm for assistance.

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What Employers Need to Know about Background Checks

Thu, 03 Dec 2015 08:00:00 GMT

It is imperative that an employer comply with federal and state laws in how the background information is obtained as well as how the information is used. Employees must be protected from discrimination based on color, race, sex, religion, national origin, disability, age and genetic information (such as family medical history). Additionally, when an employer uses a company that specializes in conducting background checks, the Fair Credit Reporting Act (FCRA) must also be complied with.

Prior to obtaining an individual’s background information, an employer must ensure that everyone is being treated equally. In other words, you cannot conduct background checks on some applicants or employees and not others. This is particularly true if this decision is based upon discriminatory factors.

An employer must be careful in discussing medical matters with applicants and employees. As a general rule, you should never use medical history or genetic information as the basis for an employment decision. You should avoid discussing medical matters with an applicant and only ask medical questions of employees if you have objective evidence that the employee is unable to do the job or presents a safety risk due to the medical condition.

If an employer obtains a background check from a company that specializes in compiling such information, there are also FCRA considerations such as:

If you have questions regarding background checks or any other employment law matter, contact us today to schedule your initial consultation. The attorneys at The Swenson Law Firm provide a variety of business law services to entities of all sizes.

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Converting a LLC to a S-Corp or C-Corp

Tue, 01 Dec 2015 08:00:00 GMT

The LLC has a different tax status from corporations. The conversion process for a LLC that is taxed as a partnership is different from one that is taxed as a corporation. Thus, you should confer with a knowledgeable attorney to discuss your options.

Below are three primary ways you can convert a LLC to a S-corp or C-corp:

Statutory Conversion

There are a few states that provide a streamlined process for converting a LLC to a corporate entity. You will be required to complete the necessary paperwork and file it with the secretary of state. When the conversion has been approved, the assets and liabilities of the LLC will automatically be transferred to the new corporate entity. The members of the LLC become stockholders of the corporation. If statutory conversion is an option in your state, it is usually the most affordable option.

Statutory Merger

If you live in a state where statutory conversion is not available, you can form a new corporate entity and merge the LLC with the new S-corp or C-corp. The LLC members will exchange their membership rights for shares of stock via a formal merger agreement. You will most likely be required to file paperwork with the state to officially dissolve the LLC once the merger has been finalized.

Non-statutory Merger

Non-statutory merger is a more complex means for converting a LLC to a S-corp or C-corp. You must form a new corporation and file all the necessary paperwork to transfer the assets and liabilities of the LLC to the new entity. The members of the LLC must also exchange their membership rights for shares of stock before the LLC is liquidated.

All of the above options involve a variety of legal matters that require the advice and guidance of an experienced business lawyer . If you are interested in learning more about converting your LLC to a corporate entity, contact the legal team at The Swenson Law Firm for assistance.

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Unique Contract Clauses that can Reduce the Likelihood of Litigation

Thu, 26 Nov 2015 08:00:00 GMT

Status Reviews

Most disputes occur because there is a breakdown in the communication between the parties. If your contract requires the parties to have status-review conference calls periodically, it can help ensure that the parties talk through their issues before they snowball into major arguments. The parties are more likely to make the effort to hold status-review conferences if the contract requires it.

Notifications sent to Higher-Management

In certain types of contracts, it can be beneficial to include a clause that requires the parties to confer with higher-management when disputes arise. The inclusion of key personnel can allow the parties to act or react quicker and potentially settle the disagreement before the matter goes to litigation. Additionally, having higher-management involved in the discussions can assist with removing personal conflicts and/or hidden agendas of those that are closer to the dispute.

Evaluations

Depending on the type of contract, it may be helpful to require the parties to seek a non-binding evaluation of a neutral party regarding the opposing positions. The purpose of this preliminary evaluation is to give each party a “reality check” and encourage settlement of the disagreement before legal counsel must get involved.

Award of Attorney’s Fees

When a contract includes a provision that allows a party to recover attorney’s fees, it can be a strong motivator to avoid litigation. For example, if a party makes an offer to settle and it is rejected, the contract can award attorney’s fees to the party that made the settlement offer if the court award is not more than a certain percentage higher than the rejected offer.

If you are interested in learning more about drafting contracts that protect the best interests of your business, contact the legal team at The Swenson Law Firm to schedule an initial consultation.

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Preventing your Logo from being Stolen

Tue, 24 Nov 2015 08:00:00 GMT

As you may be aware, the theft of logos commonly occurs in clothing and accessory items. Once a certain logo receives recognition and popularity, counterfeiters work to create similar, fake products for their own profit.

What happens if you discover your trademarked product is being counterfeited? There are numerous legal penalties for stealing a protected logo such as:

It should be noted that there are some defenses to logo theft charges. For example, if the logo was not a valid trademark because it was not used in commerce or because the likelihood of confusion is minimal. Additionally, if the original trademarked logo has become generic over time and it no longer specifically identifies a certain company, product or service.

The theft of a protected logo is serious and it can have significant consequences. If you are involved in a dispute regarding your logo, it is important to seek the advice and guidance of an attorney experienced in intellectual property .

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What Remedies are Available if my Trademark has been Infringed?

Fri, 20 Nov 2015 08:00:00 GMT

The following is a summary of the different types of remedies that may be available when your trademark has been infringed upon by another party:

Let one of our trademark attorneys assist you in choosing the remedies that will benefit you the most. Contact the legal team at The Swenson Law Firm to schedule an initial consultation.

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Do-It-Yourself Business Documents = TROUBLE

Wed, 18 Nov 2015 08:00:00 GMT

Why are do-it-yourself (DIY) documents problematic? There are a variety of reasons, but the following are some of the most common issues that are encountered when individuals use DIY tools to draft contracts and other legal documents:

The above are just a few examples of issues an attorney can help you with when starting a new company or in creating your business’s contracts. Obtaining the right advice from the start can significantly increase the likelihood of your business being a success. Contact The Swenson Law Firm for help.

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3 Legal Pitfalls your Company must Avoid

Mon, 16 Nov 2015 08:00:00 GMT

Below are three frequent legal risks that business owners should be aware of and avoid in order to protect the best interests of their company:

If you are interested in learning more about avoiding common business mistakes or how we can assist you with your business-related needs, contact the knowledgeable lawyers at The Swenson Law Firm to schedule an appointment.

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Sean Penn Files $10 Million Lawsuit

Thu, 12 Nov 2015 08:00:00 GMT

During the interview Daniels, who received an Oscar nomination for directing Precious, stated that “[Terrence] ain’t done nothing different than Marlon Brando or Sean Penn, and all of a sudden he’s some f—in’ demon.” He went on to say “That’s a sign of the time, of race, of where we are right now in America.”

Former federal prosecutor, Mathew Rosengart, has been retained to represent Penn. In the first paragraph of the complaint it is stated that:

“As a result of Penn’s status as a public figure, he has for years been the subject of scandalous, scurrilous, and baseless attacks. But Penn, like any citizen, has a right to defend himself and will no longer tolerate the reckless and malicious behavior of others, who seek to aggrandize themselves or their projects at his expense. Accordingly, and because of Daniels’ defamatory statements, Penn brings this action for monetary relief, and to deter Daniels and others from their defamatory actions.”

There are reports that Howard has admitted to the public that he physically abuses women, which Penn claims is a factor that makes Daniels’ statements egregious. Further, Penn alleges that Daniels seems to acknowledge Howard’s guilt and apparently condones it as well.

Penn believes it was inappropriate that Daniels came to Howard’s defense as “apparently part of a misguided campaign to profit and further bolster and brand his show Empire (on the eve of the Emmy Awards, when the statements were made).”

Penn’s Complaint continues, “Third, and most problematic, Daniels falsely equates Penn with Howard, even though, while he has certainly had several brushes with the law, Penn (unlike Howard) has never been arrested, much less convicted, for domestic violence, as his ex-wives (including Madonna ) would confirm and attest.”

We will continue to monitor the lawsuit filed by Sean Penn, so please check back to our blog for updates.

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What is Trademark Counterfeiting?

Tue, 10 Nov 2015 08:00:00 GMT

When another party illegally uses a protected trademark, it is referred to as “trademark infringement.” There are a variety of ways your trademark can be infringed upon. Whether the infringer is acting intentionally or not, it is important to take action immediately to protect your rights.

An area of trademark infringement that seems to be on the rise is the creation of counterfeit products. The counterfeiting of a trademark occurs when a party creates goods that look exactly like the trademarked goods (including the stolen logo or other identifying mark) and selling them as the goods of the trademark owner. We have all seen the stands on the roadside selling “Gucci” or “Prada” purses for $25.

While most consumers are aware that a table set-up on the side of the road is most likely selling counterfeited goods, there are many instances where it is not so obvious. Not only is the consumer being misled by counterfeited trademarks, but the trademark owner is being harmed because the fake products are typically of lower quality than the original product. As a result, the owner of the trademark has its reputation and business goodwill damaged by the counterfeited goods.

There are a variety of penalties for a party that is found guilty of counterfeiting. The government has the authority to seize imported counterfeit goods as well as impose criminal punishments. Additionally, the trademark owner can file a lawsuit against the counterfeiters. The owner of the mark can seek to recover actual damages, including lost profits, and possible treble damages depending upon the nature of the trademark counterfeiting.

If you believe another party is guilty of trademark counterfeiting, contact us for help immediately. The Swenson Law Firm is located in Sacramento County and we proudly serve businesses of all sizes from all over the State of California.

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Is “Happy Birthday” Copyrighted?

Fri, 06 Nov 2015 08:00:00 GMT

The lawsuit was filed by filmmakers objecting to the hold on the song by Warner/Chappell Music. U.S. District Judge George H. King reasoned that “[b]ecause Summy Co. never acquired the rights to the Happy Birthday lyrics, Defendants, as Summy Co.’s purported successors-in-interest, do not own a valid copyright in the Happy Birthday lyrics.”

As a result of this ruling, Warner/Chappell will not recover the $2 million that is reported yearly in revenue from use of the song in movies and television shows. At least this will be the case unless something occurs at the appellate level or until another party comes forward with valid proof of ownership of the song.

According to sources , the lyrics to Happy Birthday date back to a 19 ^th century schoolteacher named Patty Smith Hill and her sister Mildred Hill. The sisters assigned their rights to the publishing company owned by Clayton Summy. The copyright registrations for “Happy Birthday” were later made by Summy’s company. It has been argued by Warner/Chappell that the registration in 1935 covered the piano arrangement and the lyrics to the song. Both parties agree that the melody is so well-known that it is now public domain.

The court’s recent opinion not only rejects the argument by Warner that the copyright entitles them to a “presumption of validity,” but specifically reasons that it is not clear whether the registration included the lyrics or only covered the piano arrangement. The opinion further establishes that the rights to the Happy Birthday song were never properly transferred.

“Defendants ask us to find that the Hill sisters eventually gave Summy Co. the rights in the lyrics to exploit and protect, but this assertion has no support in the record. The Hill sisters gave Summy Co. the rights to the melody, and the rights to piano arrangements based on the melody, but never any rights to the lyrics.”

Further, the court noted that the song appeared in 20 ^th century schoolbooks and the Hill sisters did not object to such publications until 1934 (four decades after they wrote the song). And, in their objection, the Hill sisters merely asserted their rights on the melody, not the lyrics.

The next phase of this litigation will likely be whether Warner will be ordered to return millions of dollars in licensing fees. We will continue to monitor this litigation, so be sure to check back for updates.

When it comes to copyrights, obtaining the right advice from the start can significantly increase the likelihood of your success. Contact The Swenson Law Firm for help.

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Do you have an Effective Employee Handbook?

Wed, 04 Nov 2015 08:00:00 GMT

Every employer should consider addressing the following topics in their employee handbook:

If you need assistance creating an effective employee handbook, contact the legal team at The Swenson Law Firm for assistance.

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Is there a right of Publicity in Marilyn Monroe?

Mon, 02 Nov 2015 08:00:00 GMT

Monroe’s estate has turned to protecting her name and likeness with trademark claims . In its lawsuit against AVELA, a company that sells nostalgic merchandise, the Monroe estate has asserted that the goods featuring Marilyn Monroe are a violation of their trademarks. AVELA filed a motion to dismiss arguing that the estate’s claims of trademark infringement are “a thinly veiled attempt to assert a right that does not exist — a right of publicity in Marilyn Monroe.”

The recent opinion rendered by U.S. District Judge Katherine Polk Failla focuses on the distinction between publicity rights and trademarks, stating that “[t]he key distinction between a right of publicity and a false endorsement claim is that the latter requires a showing of consumer confusion.” The judge didn’t give significance to AVELA’s objections regarding the unlikelihood of the estate’s ownership or the questionable viability of a false endorsement claim on behalf of the deceased icon. The judge reasoned that the “Court cannot conclude, as a matter of law, that the existence of the copyrights cited by the Movants precludes the Monroe Estate’s ownership and vindication of trademark interests in Monroe’s name, likeness, and persona.” As a result, the lawsuit will move forward.

What does this mean for celebrities and those working to protect their rights? It opens the door for them to use the publicity rights in conjunction with the trademark infringement laws to pursue other parties who wrongfully and illegally use their images for profit.

We will continue to monitor the Monroe estate litigation and report back on whether they are able to win on the merits of the case. The primary obstacle there will be whether or not the estate can demonstrate that consumers will be wrongfully led to believe that the deceased Marilyn Monroe or her heirs are endorsing the products in dispute.

Contact us today to schedule your initial consultation. The attorneys at The Swenson Law Firm provide a variety of business law services to entities of all sizes.

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4 Individuals You Need on Your Team When Starting a Business

Thu, 29 Oct 2015 08:00:00 GMT

The Accountant

Whether it is assistance with creating a budget, keeping your books, or making sure your business takes appropriate deductions and saves money on its taxes, you need somebody that is good with numbers on your side. Having an accountant can save you a significant amount of money as well as keep you out of trouble. When selecting an accountant for your new business, you want somebody with not only expertise, but who is also interested in helping you grow your business.

The Attorney

Your new business is governed by a wide variety of laws. Depending on the industry you are in, there may be numerous regulatory issues you have to face. You may also simply need help with your forming your legal structure, contractual matters, employee issues and other operational concerns. Having a seasoned lawyer available to help prevent disputes and litigation as well as ensure you are complying with the law will save you significant amounts of money in the future.

The Mentor

Having somebody who has walked a similar road as you is invaluable. You can learn from their mistakes and shorten your learning curve. Your mentor can be anyone who will provide you valuable advice. You might be surprised at how much you can learn in one lunch date.

The Supporter

You need somebody you can lean on when times get tough. Whether it is your spouse, best friend or other loved one, you need somebody you can talk to and depend on to be your sounding-board. This person doesn’t necessarily have to provide you with advice, but they should be a good listener and provide you the support you need to make it through the rough patches.

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Understanding Trademark Infringement – It is not so easy

Tue, 27 Oct 2015 08:00:00 GMT

In applying the likelihood of confusion test, the courts consider factors such as:

The above factors are merely examples of what a court will consider. There are other factors that may also impact the court’s decision. Additionally, the court may not give each factor the same amount of weight because each trademark infringement case is decided according to its unique facts.

The party that allegedly infringed on the trademark may have several defenses available. The equitable doctrines of laches, estoppel and unclean hands may be applicable. Additionally, the alleged infringer may also argue the defense of “fair use” and “collateral use.” Fair use means that the party used the mark for commentary or criticism that incidentally involved the use of the trademark, but not for the purpose that is normally made of the mark. Collateral use occurs when the party used the trademark as a component of a more complex product. The mark can be used to identify the component by its trademarked name.

If trademark infringement has occurred, the owner of the mark can obtain and injunction and force the other party to stop using its trademark. According to 15 USC §1117 , you may also be able to seek an accounting for profits and damages, with the possibility of treble damages when appropriate. Additionally, in exceptional cases you may be awarded recovery of your attorney’s fees and costs. These remedies are cumulative, which means that a victorious owner of a trademark may recover the profits made by the defendant as well as any other damages awarded.

If you need assistance with registering a trademark or with claiming trademark infringement, contact the legal team at The Swenson Law Firm to schedule an initial consultation.

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Should You Start a New Company?

Thu, 22 Oct 2015 08:00:00 GMT

Is the time right?

Similar to having a baby, there is not “perfect time” to start a new business. However, you must think about what is going on in your life and how it will impact your ability to give the business your all. As a new business owner, you will be devoting a significant amount of time, energy and money to your entity, which may also mean sacrifices must be made in other areas of your life.

Do you have a business plan?

Don’t make the mistake of thinking you don’t have time to create a business plan or that it is a waste of time. Creating a business plan forces you to think through issues and helps you avoid costly mistakes. Your plan can also help you stay on track and monitor your progress.

Can you sell?

No matter what type of business you are starting, you must have the ability to sell. Whether you are selling a product, service, or even yourself, the success of your new entity will depend on your salesmanship abilities. You must be able convince your family members that the risk is worth it. You may need to persuade investors or lenders that they should provide you financing. Having the ability to get others to “buy into” your dream is a key element in ensuring your success.

Do you have adequate financing?

Starting a business is a financial risk. Thus, it is critical that you have a solid financial plan for your company . This may mean you are working a full-time job while starting your business on the side, or it may require you to seek investors or even take out a loan. It also means your personal finances must be in order. The typical advice is to have between six months to two years of savings to pay your living expenses before starting a new business.

Do you have help?

While you may want to do it on your own, everyone needs help at some point. You should seek the advice and guidance of a mentor that can help you learn from their mistakes. Attempting to figure it all out on your own will only be a waste of your time and money.

If you are interested in learning more about starting your own business and how we can help, contact the legal team at The Swenson Law Firm for assistance.

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A Summary of How to Form a Corporation

Tue, 20 Oct 2015 08:00:00 GMT

Selecting the Corporate Name

Every state has its own rules for naming a corporation , but generally your corporate name cannot be identical to another legal entity filed with your state. You must conduct a search to confirm the name you chose is not the same as another registered business in the state and that it does not infringe on a trademark. The name should also include a designation of corporation (Corp.), incorporated (Inc.), or limited (Ltd.). Finally, the name you choose cannot imply a connection to the government or certain restricted business types (such as a bank or charity, unless you can properly register as such an organization).

Appointment of Directors

A corporation is governed by a board of directors that makes the decisions regarding finances and policies. Typically the directors are appointed by the initial owners or shareholders before the business begins operating. Owners of the business can serve as directors, but directors are not required to be owners of the corporation.

Filing Articles of Incorporation

A corporation must file its articles of incorporation or certificate of incorporation with the appropriate state office to register the business. If the company will be operating in other states, you must also register the corporation as a foreign entity and pay any applicable fees in those states as well.

A corporation should have bylaws that outline in detail the internal rules that govern the operation of the entity. You should consult with an experienced business attorney to draft the bylaws. Additionally, if there is more than one shareholder in the corporation, a shareholder’s agreement should be drafted. This contract will set forth what occurs if an owner dies, becomes incapacitated or leaves the company.

Other Considerations

The above is a summary of the first steps you must take to form a corporation. There are many other tasks that should be handled including conducting the first meeting of the directors, appointing officers, issuing shares of stock, obtaining necessary licenses or permits, and other important duties. A corporate attorney can help you with each of these matters, as well as determining whether you are exempt from securities registration requirements.

The above are just a few examples of issues an attorney can help you with when starting a new corporation. Obtaining the right advice from the start can significantly increase the likelihood of your business being a success. Contact The Swenson Law Firm for help.

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Must LLC Members Attend Annual Meetings?

Fri, 16 Oct 2015 08:00:00 GMT

If you have started a business and formed it as a limited liability company (LLC), you are likely enjoying the flexibility it is offering the members. The LLC structure has minimal formal requirements compared to other legal structures. In fact, California law does not require the members and managers of a LLC to hold annual meetings. However, there are two important reasons why your LLC’s Operating Agreement should require them anyway:

If your business is established as a limited liability company, it is important to review your Operating Agreement to determine whether or not it requires annual meetings to be held. If it does not and you are interested in amending your Operating Agreement to include the requirement, we can help. We can also assist you with understanding how to properly document your meetings. The minimal effort and cost it takes to comply with the annual meeting requirement is worth the significant amount of protection it can provide the entity and its members.

If you need assistance with your limited liability company or other business-related matters, contact the legal team at The Swenson Law Firm to schedule an initial consultation.

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Essential Legal Documents to Buy a Business

Wed, 14 Oct 2015 08:00:00 GMT

There is also a substantial amount of paperwork that must be competed when you buy a business. The following are a few of the most common legal documents that are used in California business purchases:

The above list is not exhaustive and every transaction is unique. Thus, additional documents may be required or only a portion of the agreements listed above may be required. In fact, there are certain tax forms that may be needed to allocate the purchase price to specific assets and it can save you time and money to have these forms completed as part of the sale rather than attempting to remember the transaction details at a later date.

The two main types of business purchases are an entity purchase or an asset purchase. Depending on which type of purchase you are pursuing, the primary document governing the transaction is the purchase contract. This document sets forth the various terms and conditions of the sale of the business.

The purchase agreement often includes the ancillary documents as exhibits to it, which typically means that when you sign the purchase contract, you are agreeing to the form of the additional agreements. In other words, by executing the purchase contract the parties are agreeing to the overall transaction as set forth in all of the documents, which can help ensure that the closing occurs on time and without further disputes.

If you are interested in learning more about purchasing a business, contact the legal team at The Swenson Law Firm for assistance.

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Bootstrapping your Start-Up Business to Success

Mon, 12 Oct 2015 08:00:00 GMT

Bootstrapping a start-up company is hard work, but you can do it. Contact us today to schedule your initial consultation. The attorneys at The Swenson Law Firm provide a variety of business law services to entities of all sizes.

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Do you need an Attorney to Form a Business?

Thu, 08 Oct 2015 08:00:00 GMT

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Intellectual Property Mistakes to Avoid

Tue, 06 Oct 2015 08:00:00 GMT

Protect IP created by employees

Many business owners make the mistake of assuming they own the IP created by their employees (or even independent contractors). If your company does not have a contract with the employee or contractor that grants ownership rights to all IP created while in your employment, you may have very limited, if any, rights to the IP.

Properly register your IP

In order to effectively protect your IP, you must register it for trademark, copyright or patent protection . Registration is the only means for safeguarding your IP from being copied by your competitors. Just be aware that there are some scam artists out there that claim they will properly register your IP rights, but they take your money and run. The safer route is to work with an IP attorney to ensure that your IP is properly protected.

Don’t procrastinate in creating an IP strategy

It is common for entrepreneurs to believe that they have plenty of time to figure out a plan for their IP. Sadly, this can lead to your ideas or inventions benefitting somebody else. Even if you are the first to create a product or service, you are not protected unless you are the first to register it. In other words, apply to safeguard your IP should be at the top of your priority list!

The above are just a few of the factors you must consider when it comes to your IP. The most crucial step in protecting your IP is to consult with an experienced attorney .

If you are interested in learning more about protecting your company’s IP or how we can assist you with your business-related needs, contact the knowledgeable lawyers at The Swenson Law Firm to schedule an appointment.

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The 4 Categories of Trademarks

Fri, 02 Oct 2015 08:00:00 GMT

A trademark that is considered to be “distinctive” is one that identifies a single source for particular goods or services. Trademark law does not protect terms that are merely descriptive of a good or service in order to ensure that all competitors have the ability to appropriately describe their goods or services.

Below are the four ratings for trademark protection , with one being the least protected and four having the most protection:

If you need assistance with registering a trademark or help handling opposition to your trademark application, contact the legal team at The Swenson Law Firm to schedule an initial consultation.

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Contractual Damages Available when a Breach Occurs

Mon, 28 Sep 2015 08:00:00 GMT

If you would like to include a provision limiting the available damages in your contracts, let us help. Contact us today to schedule your initial consultation. The attorneys at The Swenson Law Firm provide a variety of business law services to entities of all sizes.

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Tidbits about Click-Through Contracts

Thu, 24 Sep 2015 08:00:00 GMT

On the flip-side, most websites have extremely long “terms of use” agreements that would take too long to read when compared to the user’s limited use of the website. In fact, one estimate was that if a user read every privacy policy he was presented with in a 12 month period, it would take him in excess of 200 hours! Thus, clicking your acceptance without reading the online agreement has become a common practice. The problem, however, occurs when a dispute between the parties occurs. Your acceptance of the websites terms of use may actually result in you waiving the right to file a class action lawsuit or you may be required to resolve your disagreement via arbitration. Additionally, certain warranties are often disclaimed and the user is usually bound to certain jurisdictions or venues if they want to file a lawsuit. These types of clauses are intended to make it cost prohibitive and inconvenient for you to pursue any action against the website owner.

It is worth it to note the difference between a click-through agreement and a browse-wrap contract. The user explicitly consents to the terms of a click-through contract. A browse-wrap contract does not actually require the user to agree to its terms, but knowledgeable users know they are there. The topic of browse-wrap agreements will be covered in future blogs, so be sure to check back or contact us directly for more information.

If you have a website or mobile app, a click-through contract is the recommended method to use for helping ensure enforceability. Numerous courts have ruled that they are valid and enforceable contracts since they require the user to explicitly agree to its terms.

We also recommend that you keep an eye on the Federal Trade Commission’s efforts at standardizing mobile app terms . The FTC is working to make mobile privacy disclosures and agreements easier to read and to understand.

If you need assistance with creating a click-through contract or any other business related matter, contact the legal team at The Swenson Law Firm to schedule an initial consultation.

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Memorandums of Understanding

Tue, 22 Sep 2015 08:00:00 GMT

You might be surprised to learn that MOU’s are typically not legally binding on the parties and they do not involve an exchange of money. The MOU is a very simple document that contains fewer details than a formal contract. In fact, the MOU falls somewhere between a handshake deal and a finalized, written contract. The MOU can outline the guidelines for each party as they take steps to contribute their effort, time or resources toward their common goal.

It is critical when negotiating a MOU that both parties understand that it is not legally binding. There may be certain provisions in the MOU that are binding and these provisions should be clearly indicated as such. For example, in bold letters the MOU could state that the “following provisions shall be legally binding on the parties hereto, while the other provisions begin with a statement that the “following provisions shall be non-binding.”

Most parties do not dissect and analyze the MOU as strictly as they do a formal contract. Thus, you may be able to use this to your advantage. If you are strategic in your negotiation of the binding and non-binding clauses, it can help you be one step further along when it is time to negotiate the final agreement. Use the MOU to gain leverage, especially in the binding provisions, and make it easier on yourself to get the deal you want in the final contract.

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Using Internal Purchase Orders in your Business

Fri, 18 Sep 2015 08:00:00 GMT

Do you track and manage the requests made by your employees to purchase something? Do you know where your employees are spending the company’s money? If the answer is “no,” you are likely losing substantially more money than you realize from these internal requests.

You should consider establishing a requisition procedure for all employees who need materials or items to perform their job. Although your current process may be for the employee to email their manager their request and the manager makes the necessary purchases, this method does not allow you to track purchases or create an effective budget. When you have a requisition policy, it gives your entity the ability not only to supervise employee spending, but also provides your company the opportunity to take advantage of making larger orders and receiving significant volume discounts.

Once you have established a standard requisition procedure, your company can create a more standard purchase order process. In other words, you can contact your suppliers and notify them that you will be providing purchase orders before sending your payment for the items requested. Most suppliers will be pleased because it provides them with protection too. Having a purchase order allows the seller to contact you with any concerns regarding your order. Otherwise, your order will be shipped with an invoice once payment has been received.

Using requisitions and purchase orders to improve efficiency, ability to track expenses, and provide a means for saving money will eliminate many of the headaches that accompany employee purchasing.

If you are interested in learning more about using internal purchase orders or how we can assist you with your business-related needs, contact the knowledgeable lawyers at The Swenson Law Firm to schedule an appointment.

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The Impact Change Orders Have on Your Contract

Wed, 16 Sep 2015 08:00:00 GMT

Change orders are commonly used in a variety of different industries, particularly those that involve large projects that take a significant amount of time to complete. The original agreement that sets forth the total amount to be paid and the deadlines that must be met may become outdated or fail to accomplish a necessary goal of the parties. When a party requests that an original term be altered and a new approach be taken, it changes the order which also changes the terms of the contract.

Change orders can cover a variety of factors, but below are common examples of topics that are commonly included in change orders:

A change order should clearly state the new work to be performed (or not performed) or clearly identify the extra products to be delivered (or removed) from the original order. It is important to adjust the price as necessary and clearly state the new amount due. When the parties have reached an agreement on the terms of the change orders, it becomes an amendment to the original agreement and becomes a part of the contract. Thus, it is essential that you keep a fully executed copy of all change orders for your records.

The Swenson Law Firm is located in Sacramento County and we proudly serve businesses of all sizes from all over the State of California, Nationally and Internationally. Contact us today to learn more about how we can assist you with matters such as trademarks, defending lawsuits, business formation, contract negotiations, hiring employees, and protecting your intellectual property.

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Understanding what you should Look for in Contracts

Thu, 10 Sep 2015 08:00:00 GMT

The term “contract” includes a wide variety of documents. For example, purchase orders, work agreements, sales documents and other similar types of documents can be legally binding agreements. It is important that you retain a signed copy of all contracts for your own records. Failing to retain your own copy makes it not only difficult to confirm you are complying with your duties, but also whether the other party is fulfilling its obligations under the agreement.

It is important to understand that unless an agreement is included in the written contract, you should not rely on it. This means that any verbal promises made by the other party to induce you into signing the contract must be included in the written document. The court will look at signed contract to interpret the terms of the agreement.

Although every transaction is unique, the following are a few basic terms that you should look for when reviewing a contract:

You should never sign a legally binding document that is not complete or that contains blanks to be filled-in at a later date. And remember, the fine print is binding so it is important to read it too!

The Swenson Law Firm is located in Sacramento County and we proudly serve businesses of all sizes from all over the State of California as well as nationally and internationally. Contact us today to learn more about how we can assist you with matters such as trademarks, defending lawsuits, business formation, contract negotiations, hiring employees, and protecting your intellectual property. With our years of complex business trial and litigation experience, we are an effective, efficient and affordable choice in representing you at the bargaining table and in the courtroom.

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Employment Contract Basics

Tue, 08 Sep 2015 08:00:00 GMT

If you decide to use employment contracts, they should be tailored toward meeting your business’s specific needs as well as covering the job position. Below are a few considerations:

If you are interested in learning more about drafting solid employment contracts, contact the legal team at The Swenson Law Firm for assistance.

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Letter of Intent Essentials

Fri, 04 Sep 2015 08:00:00 GMT

Below are a few considerations when negotiating the LOI:

If you are interested in learning more about negotiating a letter of intent or how we can assist you with your business-related needs, contact the knowledgeable lawyers at The Swenson Law Firm to schedule an appointment.

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Limiting your Liability in Contracts

Wed, 02 Sep 2015 08:00:00 GMT

There are three primary types of contractual damages or compensation that may be available when a breach occurs. Many times a contract will allow for a combination of damages in order to make the non-breaching party whole. Below are the three main types of contract damages:

Limiting your liability in a contract can save you a significant amount of money if a dispute should occur. Failing to take time to negotiate the breach of contract provisions could result in liability for any or all of the above types of damages.

Let our business law attorneys review your contracts before you sign them to determine what changes can be made to limit the scope of your potential liability. Depending on the type of transaction, it may be possible to limit recovery to only actual damages incurred by the breach.

Contact us today to schedule your initial consultation. The attorneys at The Swenson Law Firm provide a variety of business law services to entities of all sizes.

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Sports Law & Ambidextrous Pitchers

Mon, 31 Aug 2015 08:00:00 GMT

In response to all the speculations regarding the matter, the Professional Baseball Umpires Corporation soon after announced a new rule to address the situation: The pitcher must indicate which arm he will throw with (usually by stepping onto the rubber with his glove on a given hand), after which the batter can choose which side of the plate to hit from. After throwing one pitch, the pitcher and batter can each change once during an at-bat.

Interestingly, back in 2008, the umpires decided to get the game moving by requiring the batter to choose his hitting side first and permitting Venditte to respond. Obviously, the reacting player gets the benefit of making the final decision, which made many wonder about the subseqent rule giving the batter the advantage. The reasoning behind the rule was that the pitcher always goes first, so the batter has always had the advantage of responding. In other words, the batter has always known in advance which hand the pitcher was going to use before going to the plate since all other pitchers have only thrown with one hand. As a result, the batting team has had the advantage of deciding whether to use pinch-hitters or in determining which side of the plate a switch-hitter will hit from. The end result is that Venditte will be required to decide whether he will throw as a righty or a lefty, which essentially eliminates the surprise element of having a switch-pitcher.

The Swenson Law Firm is located in Sacramento County and we proudly serve individuals and businesses of all sizes from all over the State of California. Contact us today to learn more about how we can assist you with matters such as sports law, trademarks, defending lawsuits, business formation, contract negotiations, hiring employees, and protecting your intellectual property. With our years of complex business trial and litigation experience, we are an effective, efficient and affordable choice in representing you at the bargaining table and in the courtroom.

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The Importance of Employee Handbooks

Fri, 28 Aug 2015 08:00:00 GMT

For example, most employees are “at-will” and this should be clearly stated in the handbook. This helps eliminate the employee’s argument that you breached a contract with him or her when he or she was terminated. In an at-will relationship, either party can end the employment relationship at any time, with or without cause.

It is important to understand a poorly drafted or outdated handbook can also expose an employer to risk. For instance, if the employee handbook sets forth numerous steps or procedures that must be followed before an employee can be fired and the employer fails to follow the required procedure, the employee can allege that the handbook was a binding contract that gives rise to a breach of contract claim.

When drafting an employee handbook, the handbook should clearly and conspicuously state that it is not a contract. It should be clear that the employment relationship is at-will, unless the relationship is changed by a separate written agreement signed by the employer and the employee. It is important to state that the employer has the ability to alter any policy set forth in the handbook (except the at-will provision) at any time. The handbook should also state that it replaces and nullifies any prior written or verbal handbooks and policies.

If you are interested in learning more about employee handbooks or how we can assist you with your business-related needs, contact the knowledgeable lawyers at The Swenson Law Firm to schedule an appointment.

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Is an LLC the Right Entity for your Start-Up?

Wed, 26 Aug 2015 08:00:00 GMT

Below are four reasons you may want to consider using the LLC structure for your start-up company:

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Selecting Your Business Partner

Mon, 24 Aug 2015 08:00:00 GMT

Contact us today to schedule your initial consultation. The attorneys at The Swenson Law Firm provide a variety of business law services to entities of all sizes.

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Starting an Online Business? Consider these Ideas

Thu, 20 Aug 2015 08:00:00 GMT

If you are considering starting your own business, we are here to help. Contact the knowledgeable lawyers at The Swenson Law Firm to schedule an appointment.

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Trademarks and §8 Declarations

Mon, 27 Jul 2015 08:00:00 GMT

Failure to file the §8 Declaration will result in the registration of your mark being cancelled. There are strict deadlines for these filings, so if you need assistance, please contact us . You should note that the USPTO does not have the ability to waive or extend the deadline for filing the §8 Declaration. Additionally, if your trademark registration is cancelled for failure to timely file a §8 Declaration, there is not a procedure for reinstating your mark without making a new application to register the mark again.

According to the USPTO website , the owner of the registration must file a §8 Declaration during the following time periods:

A filing made within six months of the above deadlines will be considered as timely if an additional fee is paid.

If you need assistance with registering a trademark or filing a §8 Declaration, contact the legal team at The Swenson Law Firm to schedule an initial consultation.

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Could your Trademark Lead to Solicitations?

Thu, 23 Jul 2015 08:00:00 GMT

The solicitations often use names that are similar to the USPTO, which typically includes terms such as the United States, trademark, patent, office or agency. They may even have official-looking documents that reference the USPTO application number, the registration number, your filing date, or other information that can be obtained from your public filing.

So, how do you know if the correspondence you’re receiving is legitimate? Official correspondence from the USPTO will be from Alexandria, VA. Additionally, if you receive an email from their office it should have the “@uspto.gov” domain.

Don’t be taken advantage of or tricked into paying fees that you do not owe. If you have questions regarding whether correspondence you have received is legitimate or not, please contact us for assistance.

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Will Congress Outlaw Non-Compete Agreements for Low-Wage Employees?

Tue, 21 Jul 2015 08:00:00 GMT

Under the bill, the definition of “low-wage employees” includes hourly employees that earn less than $15 per hour or the applicable state minimum wage, whichever is greater, or a salaried employee that makes $31,200 per year or less. The bill implements the FLSA definitions of “employer” and “employee.” The MOVE Act would require an employer who employs low-wage employees to post a notice of the MOVE Act in a conspicuous location on its premises. If an employer wishes to enter non-compete agreements with employees who do not qualify as low-wage workers, the employer must make a disclosure of the requirement “prior to the employment of such employee and at the beginning of the process for hiring such employee.”

Enforcement of the MOVE Act would be performed by the Secretary of Labor, who is granted the authority to investigate and enforce complaints in the same manner as other claimed violations under the FLSA. The bill proposes a $5,000 civil fine for every employee that is the subject of a violation.

This legislation appears to be in response to the increasing use of non-compete agreements with low-wage workers, which was brought to light when Jimmy John’s restaurant came under fire for using these types of contracts with all its employees. The questionable clause in Jimmy John’s agreement prohibited its employees for two years from working at any food service venue that obtains 10% or more of its income from the sale of “submarine, hero-type, deli-style, pita and/or wrapped or rolled sandwiches” within three miles of a Jimmy John’s restaurant. A class action lawsuit was filed, but thus far the plaintiffs have not experienced much success.

Due to the differing state laws regarding the enforceability of non-compete agreements, having the courts make this determination will likely lead to inconsistent results. It will be interesting to see if Congress steps in to resolve the issue.

If you are interested in learning more about non-compete agreements or how we can assist you with your business-related needs, contact the knowledgeable lawyers at The Swenson Law Firm to schedule an appointment.

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Letter of Intent Basics

Fri, 17 Jul 2015 08:00:00 GMT

When you are negotiating the LOI, consider the following:

While the above list provides pointers for approaching the LOI negotiations, it is also important to remember that you do not have to negotiate every detail of the transaction at this point. Having an experienced business attorney assist you can help you find the balance between negotiating the important terms while leaving the minor details for later negotiations.

If you need assistance with negotiating a letter of intent or other matters related to selling your business, contact the legal team at The Swenson Law Firm to schedule an initial consultation.

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Taylor Swift vs. Apple

Wed, 15 Jul 2015 08:00:00 GMT

To her credit, Swift is the most popular pop star, she is worth in excess of $200 million, and she is only 25 years old. Her simple statement in a Tumblr post that her new album “1989” would not appear on Apple Music sent Eddy Cue, an Apple executive, backpedaling.

Cue responded to Swift saying that Apple would, in fact, be paying the artists royalties during the free trial period. “We hear you @taylorswift13 and indie artists. Love, Apple,” he tweeted.

True to her word that she believes offering music for free cheapens her product, Swift has not put her “1989” album on Spotify because they offer a free tier service. Her music is on Pandora, Radio, and now Apple Music.

It seems Apple has learned a valuable lesson about greed. Even though providing 90 days of free service would save Apple a few million dollars in royalties for the quarter, the loss of artists and the PR nightmare it was creating was not worth it. Besides, a few million dollars is pocket change for Apple.

As for Swift, she continues to be a role model for teens – she keeps it clean and stays out of trouble – as well as a role model for the business world. She is reenforcing the idea that capitalism is not a bad thing. It is about getting paid what you have earned. If you work hard and you create profits, you should reap the reward.

Even the largest and most successful companies make mistakes. They can even get too greedy, as was the case with Apple. As Swift put it: “But I say to Apple with all due respect, it’s not too late to change this policy and change the minds of those in the music industry who will be deeply and gravely affected by this. We don’t ask you for free iPhones. Please don’t ask us to provide you with our music for no compensation.”

Apple has hopefully realized that without content, they don’t have much to offer the world. Swift wasn’t asking for anything more than what was fair. And, to Apple’s credit, they admitted their mis-step and corrected it. In return, Swift signed on to Apple Music’s new streaming services.

Contact us today to schedule your initial consultation. The attorneys at The Swenson Law Firm provide a variety of business law services to entities of all sizes.

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Are Your Vacation Time & Sick Leave Policies Up-to-Date?

Mon, 13 Jul 2015 08:00:00 GMT

Vacation Time

In California, the law provides that an employee is not entitled to receive paid vacation time unless the employer has agreed to provide it. While this may seem like an easy enough rule to follow, there are still a variety of disagreements that still arise between employers and their employees.

If you are an employer that provides vacation benefits to your employees, it is imperative that your policies comply with the law. For example, a California employer cannot have a policy that provides an employee must use the vacation time or it will be lost. Once your employees have earned their vacation pay, the employer is prohibited from taking it away from them. You also cannot require that the vacation time be used in the same calendar year that it is earned. However, an employer is allowed to set a maximum amount of vacation time pay that can be accrued.

If an employee has accrued vacation time and is fired, the employer must typically pay the terminated employee the accumulated vacation time pay. This sum will be paid as wages at the employee’s last applicable rate of pay.

Having a vacation time pay policy that complies with the law is one of the most important steps in avoiding litigation on the issue. Your policy should cover numerous topics such as how an employee becomes eligible, the rate that will be paid, the maximum amount of accrued time allowed, and whether the employee must obtain approval before using the vacation time. Having a knowledgeable attorney review your policy on an annual basis is a smart move.

Sick Leave

California recently passed a new sick leave law which becomes effective in July of 2015. The law requires most public and private employers in the State to provide their employees with a minimum of three paid sick days each year. Employers are allowed to use the accrual method or provide the sick days in a lump sum. An employer is permitted to limit the accrual of paid sick days to 48 hours or six days, in addition to limiting the use of paid sick days to three annually.

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Advice on How to Work with Your Business Attorney

Thu, 09 Jul 2015 08:00:00 GMT

Follow your Gut Instinct

Your business attorney will have a significant impact on the success of your business. Thus, you should choose to work with somebody who is not only intelligent and experienced, but also one that you trust and feel comfortable working with. While another lawyer may be perfect for your friends or counterparts, he or she may not be the right fit for you. Thus, it is important to follow your gut instinct and hire the attorney that you have the most confidence in handling your company’s affairs.

Be Involved

One of the biggest mistakes people make is handing over the contract or other matter to their attorney and then “checking out.” While your lawyer can handle some things on his or her own, it is essential for you to stay involved. Your attorney will likely focus on minimizing your risk in the transaction, but you may understand that in order to get the deal done, you have to assume some risk. Thus, it is imperative that you openly communicate with your attorney as to which risks are acceptable and which you consider a deal-breaker. Your lawyer’s job is to properly draft and document the deal you want, which requires you to stay involved in the process.

Don’t get Bogged Down

You are the motivating factor in getting the deal done. Communicate with your attorney regarding the time constraints for getting the transaction closed. Many clients become frustrated with how long their attorney is taking when no discussion was ever had regarding timing. If something is taking a long time to accomplish, your lawyer should be able to inform you of the reasons for the delay and what is being done to keep the process moving.

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Protecting Trade Secrets with Non-Disclosure Agreements

Tue, 07 Jul 2015 08:00:00 GMT

How do you protect your trade secrets ? There are different measures you can take, but a simple tool is the non-disclosure agreement (NDA). This type of contract should be signed by employees, independent contractors and any other third-parties with access to your trade secrets. A NDA, also commonly called a confidentiality agreement, legally binds the parties to protect your non-public information. Further, if the third-party violates the NDA, your business will be entitled to recover damages and other remedies at law.

Each NDA should be drafted to fit the needs to your specific business. Below are examples of some of the important provisions that you should consider including in your NDA:

Having NDA’s in place is an effective way to protect your business and its trade secrets. All it takes is one disclosure to the wrong party and you will no longer be set apart from your competitors.

If you are interested in learning more about non-disclosure agreements, contact the legal team at The Swenson Law Firm for assistance.

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Planning for a Breach of Contract

Fri, 03 Jul 2015 08:00:00 GMT

A “breach” of an agreement occurs when one of the parties fails to properly or timely perform its duties and obligations under the contract. If a breach should occur, your contract should detail what type of liability the breaching party has as well as the type of damages the non-breaching party can recover.

There are three primary types of contract damages that can be recovered by the non-breaching party. The idea behind an award of damages is to make the injured party whole. As a result, many contracts allow for the combination of damages. The main types of contractual damages are:

Before you sign a contract, you should confer with a business attorney for advice on how to limit your liability under the contract. Failure to do so could leave you liable for all three of the different types of damages listed above if you breach the contract. We can review the agreement and ensure that your potential liability is minimized as much as possible.

Contact us today to schedule your initial consultation. The attorneys at The Swenson Law Firm provide a variety of business law services to entities of all sizes.

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E-Signatures….The New Norm for Contracts?

Wed, 01 Jul 2015 08:00:00 GMT

One specific area that you should consider is how technology has affected the negotiation, drafting and signing of contracts. While this process can still be painstaking, getting a finalized copy of the contract is now just a click away. The use of electronic or e-signatures on your agreements allows you to quickly obtain the other party’s consent to the contract. It saves time by eliminating the need to print, execute and scan the document. The use of e-signatures also allows your in-house counsel to confirm that the contracts maintain their original form while being stored within the electronic system. This is beneficial when it comes time to conduct an audit, as well as allowing the contract to be searchable.

E-signatures also allow the parties to execute documents while they are away from the office. As long as the parties have internet service, they can digitally accept the terms of the contract with just a few clicks on the computer. And, due to the passage of federal and state E-sign laws, all U.S. jurisdictions accept e-signatures as legally binding.

Along with the convenience and other benefits e-signatures provide, you must also implement policies and procedures governing the use of e-signatures. In other words, it must be clear which employees have the authority to submit e-signatures and under what circumstances. Additionally, your IT department should be trained and fully informed regarding the new procedures and tools you are implementing.

When used properly, electronic signatures can make your business more efficient while also creating a system for managing and searching your records and contracts.

If you are interested in learning more about e-signatures or how we can assist you with your business-related needs, contact the knowledgeable lawyers at The Swenson Law Firm to schedule an appointment.

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10 Tips for Start-Ups Ready to Play with the “Big Boys’ – Part 2

Thu, 25 Jun 2015 08:00:00 GMT

If you are interested in learning more about how we can help you negotiate your transactions or how we can assist you with your business-related needs, contact the knowledgeable lawyers at The Swenson Law Firm to schedule an appointment.

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10 Tips for Start-Ups Ready to Play with the “Big Boys’ – Part 1

Wed, 24 Jun 2015 08:00:00 GMT

Be sure to read our next blog for five more tips on how entrepreneurs should prepare for entering negotiations and transactions with larger or more sophisticated companies.

Contact us today to schedule your initial consultation. The attorneys at The Swenson Law Firm provide a variety of business law services to entities of all sizes.

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5 Common Mistakes New Businesses Make Regarding Their IP

Tue, 23 Jun 2015 08:00:00 GMT

If you are interested in learning more about protecting your intellectual property or how we can assist you with your business-related needs, contact the knowledgeable lawyers at The Swenson Law Firm to schedule an appointment.

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Starting a Business? Avoid these Actions that Could Lead to Criminal Liability

Mon, 22 Jun 2015 08:00:00 GMT

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What Constitutes “Proprietary Information?”

Fri, 19 Jun 2015 08:00:00 GMT

Below are a few examples of types of proprietary information:

Protecting proprietary information is essential to ensure that competitors cannot keep up with you or surpass you. It also helps ensure that if a breach occurs, your business will have legal recourse. The law can impose severe penalties for stealing trade secrets.

If you need assistance understanding what types of proprietary information your business has and how you can protect it, let us help. The Swenson Law Firm is located in Sacramento County and we proudly serve businesses of all sizes from all over the State of California. Contact us today to learn more about how we can assist you with matters such as trademarks, defending lawsuits, business formation, contract negotiations, hiring employees, and protecting your intellectual property. With our years of complex business trial and litigation experience, we are an effective, efficient and affordable choice in representing you at the bargaining table and in the courtroom.

The post What Constitutes “Proprietary Information?” appeared first on The Swenson Law Firm - Providing Guidance and Protection to California Businesses and Employers .

Protecting Proprietary Information when an Employee Leaves

Wed, 17 Jun 2015 08:00:00 GMT

Exit Interviews

On the employee’s last day of employment with you, an exit interview should be conducted to discuss the practical and legal matters associated with his or her departure. If applicable, this includes reminding the employee of the non-disclosure agreement and/or the non-compete contract he or she signed. If such contracts were not signed, an employer should still inform the employee that your company’s trade secrets are protected and should not be disclosed. Further, you may want to ask the employee to sign an acknowledgement of his or her ongoing obligations and confirm that all company documents and records have been returned to you. If you discover that your employee has been hired by a competitor, you should confer with us as a precautionary measure.

Recover Devices

Before the departing employee leaves the premises, you should confirm that any company devices provided to the employee as part of his or her employment has been returned. This includes cell phones, laptops, iPads and other similar types of devices. Again, you should have the employee sign a confirmation statement that all company devices were returned to you.

Terminate Access

A departing employee’s access to the company network, email, file rooms or other restricted areas should be terminated. This includes having the employee return any access cards, passes or keys. If codes are used to gain entry into the building or other areas, the code should immediately be changed.

IT Check

Your IT department should conduct an investigation to determine whether any improper downloads of information were made by the employee. If you discover such activity occurred, you should contact us to discuss your legal options .

Notify Third-Parties

If the departing employee had contact with clients, customers, vendors or other important third-parties, you should notify them that the employee is no longer working with you. It is important to provide the third-party with a new point of contact at your business.

If you have questions regarding the termination of an employee or any other business-related matter, please contact The Swenson Law Firm to schedule an initial consultation.

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3 Contracts that Protect Your Proprietary Information

Mon, 15 Jun 2015 08:00:00 GMT

There are a variety of ways to protect intangible assets. Below are three types of written agreements that can protect your proprietary information:

As a practical matter, all employees should be required to password protect their company computers and other devices. These passwords should be updated routinely. You should also consider limiting access to your entity’s sensitive information to only those personnel that require access in order to properly perform their job. Finally, make sure your business backs-up its digital data routinely.

If you are interested in learning more about protecting your proprietary information or how we can assist you with your business-related needs, contact the knowledgeable lawyers at The Swenson Law Firm to schedule an appointment.

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Starting a Business? Read this First!

Thu, 11 Jun 2015 08:00:00 GMT

Legal Formation

Choosing the legal structure for your business is important. There are different types of legal formations to choose from, so you must educate yourself on the pros and cons of each. To learn more about the types of legal structures, please read our blog titled “Selecting the “Right” Legal Entity for Your Start-Up.” Let one of our business lawyers help you understand your options and ensure that you select the legal structure that is most advantageous for your company.

Written Contracts

One common mistake many new business owners make is relying on verbal promises and failing to obtain their agreements in writing. Having written contracts is the best way to safeguard your interests. It is important to understand that a new business owner not only needs written contracts with customers, clients and vendors, but also with the founders of the business. This type of agreement should set forth each owner’s percentage of ownership and how daily business decisions will be made.

Intellectual Property

Intellectual property can include anything from your business name, to its logo, to the services it provides or the products it sells. It is particularly important for a business owner to be proactive in legally protecting their intellectual property. This means obtaining the proper patent, trademark or copyright protections as well as requiring your employees to sign a non-disclosure agreement.

Contact us today to schedule your initial consultation. The attorneys at The Swenson Law Firm provide a variety of business law services to entities of all sizes.

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Protecting Digital Data with Vendor Agreements

Tue, 09 Jun 2015 08:00:00 GMT

Since the Target data breach, safeguarding digital data has been a hot topic for all business owners in all industries. In fact, according to the New York Times , many companies have been asking for confirmation from their lawyers and other professionals that protections have been put in place to ensure that their confidential information is safe.

One important aspect for business owners to consider is the security measures being implemented by their vendors. No vendor should be shocked by this request and should be willing to provide proof the tools it uses to ensure your business’s digital data is protected. By requesting this information from your vendor, you can reduce your exposure to risk as well as hold your vendor accountable for a breach. This type of discussion will encourage your vendors to remain current on the measures they use to safeguard your company’s sensitive data.

So, what factor should you discuss with your vendor? First, you should make sure you fully understand how the vendor distributes confidential information. For instance, private digital files should not be emailed to unsecure devices. You should also have your vendor explain whether their computers are linked to shared networks that could make your information vulnerable to hackers. Additionally, your vendors should provide you with a list of any employees who will be granted access to your business’s private information. Finally, your vendor should provide you with evidence of the digital security tools that will be used to safeguard your digital data.

If you are interested in learning more about how to protect your confidential information and ensuring that your vendor agreements do the same, contact the legal team at The Swenson Law Firm for assistance.

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Tips for Protecting your Trademark: Use, Monitor & Enforce Your Rights

Fri, 05 Jun 2015 08:00:00 GMT

Use it or lose it

Once you have established your rights in a trademark, you must protect it by using it. This means you display the name, logo or mark in prominent places. You should indicate that it is a federally registered mark by using the “®” symbol (or the TM for common-law marks or SM for common-law servicemarks) on your product or marketing materials. You don’t have to use the registration symbols all the time, but when another party reads ads, websites, publications, or looks at your product, they should be put on alert that your trademark is registered and protected.

Avoid being a household name

While it may seem desirable to have your product become a household name, if your trademark becomes a generic word, you could lose ownership of it. Common examples include the “zipper” (B.F. Goodrich) or “aspirin” (Bayer and AG). You may have noticed recent commercials by Kleenex that remind consumers they are a brand, not a product, in an attempt to avoid this fate. The key is to avoid using your mark as a noun and use it as an adjective instead (buy Kleenex facial tissues, rather than buy Kleenex).

Monitor your trademark

Conducting routine searchers to confirm competitors are not using phrases or images similar to yours can help ensure that you stop infringements quickly. Any action by another business in your same industry that could confuse consumers about your mark should raise a red flag.

Enforce your rights

If you discover another party is infringing on your trademark, you must decide whether or not to pursue your rights. One of our intellectual property attorneys can help you asses the strength your trademark and the likelihood of winning a lawsuit if one becomes necessary. We can work with you to create a proper and affordable response to potential infringers, but it is important to take some action so you don’t lose rights to your mark. If you do not take infringements seriously, neither will the court.

Contact us today to schedule your initial consultation. The attorneys at The Swenson Law Firm provide a variety of business law services to entities of all sizes.

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Tips for Protecting your Trademark: Select Wisely & Register It

Wed, 03 Jun 2015 08:00:00 GMT

Terms that are too generic, such as “tennis shoes,” are not protectable by a trademark. If you select a name that is descriptive, such as “speedy tennis shoes,” may be able to be trademarked, but you will have a difficult time defending it in court if a competitor uses a similar name.

You will get stronger protection with a name that is suggestive or that creatively conveys the unique nature of your business. For example, “Blu-ray” is a suggestive trademark for a laser disk player that uses blue-violet light.

Your mark will have the strongest amount of trademark protection if it is “fanciful” or “arbitrary.” Examples of arbitrary or fanciful trademarks include Apple for the name of a computer company or a made-up word such as Nike for tennis shoes. These names used in association with their products are inherently distinctive, which makes it hard for a competitor to copy without it being an obvious infringement of the trademark.

Choosing a strong trademark begins by selecting a mark that nobody else is already using. One of our trademark lawyers can assist you with searching the registered trademarks with the U.S. Patent and Trademark Office . A comprehensive search includes searching for look-alike names, sound-alike names and common law marks.

When it comes to trademarks, being on the offensive is key. You want to take action to protect your mark so you are on solid ground if a dispute arises. Be sure to read our next blog which discusses how to ensure you protect your trademark once you have it properly registered.

If you need assistance in selecting or registering your company’s trademark, contact us to schedule your initial consultation. You can’t afford not to protect your trademarks. Call us , we can help.

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Trademarks: Cease & Desist Letters

Mon, 01 Jun 2015 08:00:00 GMT

If you determine it is necessary to send a cease and desist letter, it should be drafted carefully by one of our intellectual property attorneys . The goal is for the letter to get the infringer to voluntarily stop using the mark illegally, but in some cases, sending a cease and desist demand can backfire. A small business owner should never attempt to send a cease and desist letter without seeking professional advice. Including the wrong information in the letter or sending a demand when one is not necessary can lead to big trouble for your business.

A common mistake occurs when two companies have the same legal name. This is allowed as long as they sell different products or services. This simple misunderstanding can lead to an unwarranted cease and desist letter or even litigation. Thus, you should retain an attorney to verify that the action you are going to take is appropriate.

The tone of the letter is also important, because a typical cease and desist letter provides legal notice that legal action may be taken if the conduct in question continues. Thus, a small business owner who cannot afford to file a lawsuit should not send a letter that will provoke the other party into filing a lawsuit against him or her.

If you are interested in learning more about sending a cease and desist letter or how we can assist you with your business-related needs, contact the knowledgeable lawyers at The Swenson Law Firm to schedule an appointment.

The post Trademarks: Cease & Desist Letters appeared first on The Swenson Law Firm - Providing Guidance and Protection to California Businesses and Employers .

Save Money by Protecting Your Trademark from the Start

Thu, 28 May 2015 08:00:00 GMT

Don’t make the mistake of waiting until there is a problem to seek an attorney’s help. Spending a small amount upfront to ensure your trademark is fully protected can save you a fortune in the future. You don’t want to invest all of your time and money in building a brand, only to have it end up in litigation.

Conducting trademark searches is essential. While it is important to have a trademark attorney conduct the final search on the mark you choose, you can save time by performing preliminary searches to confirm the mark you pick is not currently being used. Once you have registered your trademark, you can perform routine searches to confirm nobody is infringing and using your trademark.

Many companies use Google Alerts as a way to monitor their mark. Google Alert is a free notification system that sends you an alert each time your mark appears in the news. While Google Alerts are helpful, they should not be exclusively relied upon. It is still important for you to conduct your own periodic searches to ensure your trademark is not being infringed upon. If you receive a Google Alert that causes you concern, you should contact us. We can dig deeper and determine if there is a problem and the most cost-effective way to resolve it.

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What You Need to Know about Dissolving your Business

Tue, 26 May 2015 08:00:00 GMT

Every state has its own business code setting forth how companies can be formed and operated within its borders. Each type of entity has specific procedures that must be followed when winding up its affairs and closing its doors. An owner that closely follows these procedures will be protected from incurring personal liability and ensure that all obligations of the entity end on the day the business officially closes.

Most state laws require a majority vote by the owners to shut down the entity. When a vote to dissolve the entity is taken, it should be properly documented and recorded in the company’s books. The business owners may also choose to appoint an individual to manage paying creditors, selling assets and closing accounts.

Dissolution laws usually allow the entity to publish notice in a local newspaper to set a deadline for claims to be submitted. When proper notification is provided, some states bar creditors from filing lawsuits against the business after time has passed. Other states provide that the notice serves to limit claims to any remaining assets that were distributed to the owners.

Once all of the debts and obligations of the dissolved business have been satisfied, any remaining amounts can be distributed to the owners. The laws also typically require the company to set aside an adequate amount of money to pay any unresolved debts.

Finally, the dissolving business must file the appropriate paperwork with the state. These documents are commonly referred to as the article of dissolution or certificate of dissolution. These records establish as a matter of public record the date that the entity closed.

If you need assistance with properly dissolving a business and protecting the owners from personal liability, contact the legal team at The Swenson Law Firm to schedule an initial consultation.

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Small Business Tips

Fri, 22 May 2015 08:00:00 GMT

Starting your own business is not easy, but it is also one of the most rewarding experiences you may ever have when done right. Using the tips above will help your business get off to a great start.

Contact us today to schedule your initial consultation. The attorneys at The Swenson Law Firm provide a variety of business law services to entities of all sizes.

The post Small Business Tips appeared first on The Swenson Law Firm - Providing Guidance and Protection to California Businesses and Employers .

Exceptions to the Limited Liability Provided by a LLC

Wed, 20 May 2015 08:00:00 GMT

All owners of a LLC have protection from being held personally liable for business debts and claims against the LLC. If the LLC is unable to pay its bills (such as its rent, mortgage, or other type of loan), the creditor cannot legally go after the personal assets owned by the members of the LLC. Thus, because only assets owned by the LLC can be used to pay the business debts, the only money that a LLC owner stands to lose is the funds invested in the LLC which results in “limited liability.”

It is important to understand that the limited liability protection afforded by a LLC is not absolute. In fact, the owner of a LLC can be held personally liable for business debts if the owner:

The last exception is one of the most common ways LLC owners lose their protection. If owners use the LLC as an extension of his or her personal finances, a court can determine that the LLC does not really exist and that the owners are actually conducting business as individuals who should be personally liable for their acts.

To ensure that you are treating the LLC as a separate legal entity, the owners must:

If you are interested in learning more about creating a limited liability company or how we can assist you with your business-related needs, contact the knowledgeable lawyers at The Swenson Law Firm to schedule an appointment.

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Terminating an Employee

Mon, 18 May 2015 08:00:00 GMT

Letting an employee go is never easy, but sometimes it is the best choice for your small business. The longer you retain an underperforming employee, the more likely you are to regret that decision.

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Few Funds? Get Creative to Start Your New Business

Thu, 14 May 2015 08:00:00 GMT

The first issue to address is to understand how much money you will actually need. This may be determined by how many hours in a day you can work, how much product you can produce, or how long it will take for you to build a client base.

It is imperative for a new business to keep its overhead as low as possible. Anything you have to spend money on will eat away at your profits, before you even have any!

When it comes to actually funding your business , don’t be afraid to ask your relatives and friends for help. You don’t have to ask for thousands of dollars from each of them.

Although it is scary to think about, obtaining a bank loan can help you with the start-up funding you need. If you have a good credit score, this should be no problem.

If you are unable to raise the money you need from people you know or borrowing from the bank, you may want to consider crowdfunding. This is a tool that allows you to get money from strangers who believe in your business idea and want to be a small part of what you’re doing. For more information on crowdfunding, look at websites such as Kickstarter and Crowdfunder.

As a very last resort, you may want to consider a loan from your 401k. You should confer with your accountant so you fully understand the consequences of borrowing from your retirement fund. In some cases, you can get a loan from your 401k as long as you pay it back in the next year. Failure to do so, however, can result in harsh penalties.

Whatever type of funding you decide to pursue, it is important to have the agreement with your investors reduced to writing. Having a contract in place is the only way to protect yourself and to help preserve your relationship with friends and family that invest in your business.

If you are interested in learning more about how we can assist you with your business-related needs, contact the knowledgeable lawyers at The Swenson Law Firm to schedule an appointment.

The post Few Funds? Get Creative to Start Your New Business appeared first on The Swenson Law Firm - Providing Guidance and Protection to California Businesses and Employers .

Buying a Business? Be sure to Cover These Topics

Tue, 12 May 2015 08:00:00 GMT

If you are considering buying your first business, it is important to understand that you must ask the previous owner every question about running the business that you can think of. The more answers you can get, the less risk you will be taking on. Below are topics you should consider covering with the seller of the business:

If you need assistance with purchasing a new business, contact the legal team at The Swenson Law Firm to schedule an initial consultation.

The post Buying a Business? Be sure to Cover These Topics appeared first on The Swenson Law Firm - Providing Guidance and Protection to California Businesses and Employers .

Understanding the Differences Between Trademarks, Copyrights & Patents

Fri, 08 May 2015 08:00:00 GMT

Trademarks

Trademark protection is often used to protect brand names. It is the word or phrase that informs the public of where the good or service comes from. It can be a logo, design, slogan or a tag line. A trademark can be used to protect anything that points the consumer back to the maker or owner of the product or service. Not only does a trademark prevent other parties from using the same mark, it prevents them from using similarly confusing marks. In other words, another party cannot create a mark that is similar to your mark in order to confuse the consumer and steal business intended for you. To learn more about registering a trademark, read our blog titled “Establishing Rights in a Trademark.”

Copyrights

A copyright is used to protect creative works from being copied, used or distributed without permission. It can protect writings, art, music or even computer codes. A copyright only protects the original expression in a work – it does not protect the overall idea of the work. Additionally, a copyright can last for many years, but not forever. Thus, once the copyright expires or the work is considered “out of copyright,” the public is allowed to copy, use or distribute it without obtaining approval.

Patents

Patents can be used to protect an idea, invention, process or design. To be eligible for a patent, the work must be novel and useful (for a utility patent) or ornamental (for a design patent). Once your patent expires, the work is open to the public to be copied or used without obtaining permission.

If you have questions regarding trademarks or copyrights we can help. Contact the legal team at The Swenson Law Firm to schedule your initial consultation today.

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What You Need to Know Before You Seek Funding

Wed, 06 May 2015 08:00:00 GMT

Know your business

While this may seem obvious, many new business owners fail to thoroughly examine the major issues that surround their company. If you have ever watched the television show “ Shark Tank ,” you have seen this happen time and again. An investor wants the owner of the business to know everything about the business, its product or service, the market it is trying to reach and the competition. You must also have a thorough understanding of your business model and your financials. You should be prepared to answer any and all questions by an investor.

Discover what the investor wants

By conducting research on what the investors are looking for, you can create an approach that will be well-received by them. What does the investor typically invest in and why? There are numerous books on what most consider in determining whether to invest as a company, as well as many blogs that are written by venture capitalists. Gathering this type of information will be time well spent.

Invest in yourself

Entrepreneurs must understand that the initial influx of cash must come from their own pocket. An investor is not going to hand over a substantial sum of money simply because you have a great idea. They want to see a prototype or some other evidence of what they are investing in and this first step will cost money. Additionally, by investing in your own company, you are telling investors that you are putting your own money where your mouth is.

The post What You Need to Know Before You Seek Funding appeared first on The Swenson Law Firm - Providing Guidance and Protection to California Businesses and Employers .

Tips for Protecting Confidential Information When an Employee Leaves

Mon, 04 May 2015 08:00:00 GMT

By taking these few steps, you can minimize the likelihood of a departing employee disclosing your company’s confidential information. Additionally, you will put yourself in a better position to deal with an improper disclosure if one should occur.

If you are interested in learning more about protecting your company’s proprietary information, contact the legal team at The Swenson Law Firm for assistance.

The post Tips for Protecting Confidential Information When an Employee Leaves appeared first on The Swenson Law Firm - Providing Guidance and Protection to California Businesses and Employers .

How to Keep Your Business Secrets a Secret

Thu, 30 Apr 2015 08:00:00 GMT

With the exception of a trademark, once you have obtained one of the above types of protection, you can freely share the information with other parties. However, you may still want to use a non-disclosure agreement, especially if your copyright, trademark or patent has not been finalized. It is essential to seek professional assistance in drafting a NDA because this type of contract is only as good as the agreement itself and courts often strictly construe NDA’s.

The post How to Keep Your Business Secrets a Secret appeared first on The Swenson Law Firm - Providing Guidance and Protection to California Businesses and Employers .

Signs Your Start-Up is a Success

Mon, 27 Apr 2015 08:00:00 GMT

If you are interested in learning more about starting a business or how we can assist you with your existing business-related needs, contact the knowledgeable lawyers at The Swenson Law Firm to schedule an appointment.

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All Entrepreneurs Should Avoid These Mistakes

Thu, 23 Apr 2015 08:00:00 GMT

The above are general pieces of advice, but for more individualized guidance, contact one of our business attorneys to schedule an appointment. The Swenson Law Firm is located in Sacramento County and we proudly serve businesses of all sizes from all over the State of California. Contact us today to learn more about how we can assist you with matters such as trademarks, defending lawsuits, business formation, contract negotiations, hiring employees, and protecting your intellectual property. With our years of complex business trial and litigation experience, we are an effective, efficient and affordable choice in representing you at the bargaining table and in the courtroom.

The post All Entrepreneurs Should Avoid These Mistakes appeared first on The Swenson Law Firm - Providing Guidance and Protection to California Businesses and Employers .

Tip of the Day – Handshake Partnerships are Bad!

Tue, 21 Apr 2015 23:14:00 GMT

Getting your partnership in writing protects you and your business.

The post Tip of the Day – Handshake Partnerships are Bad! appeared first on The Swenson Law Firm - Providing Guidance and Protection to California Businesses and Employers .

Why Should My Business Incorporate in Delaware?

Tue, 21 Apr 2015 08:00:00 GMT

So, what makes Delaware so attractive to businesses? The Delaware General Corporation Law is flexible. The state legislature is continually updating and improving it. Also, it is interpreted and enforcement decisions are made by Delaware’s Court of Chancery, which only hears and decides corporation litigation cases. As a result, many corporate attorneys like its certainty and well-established case law.

The downside to incorporating in Delaware is the expense. Generally, you will pay $300 to $500 each year, including state filing and registered agent fees. You will also be charged Delaware franchise taxes which can range from $75 to thousands of dollars annually.

So, is it worth paying the additional expense to incorporate in Delaware? It is important to seek legal counsel regarding your unique entity and what is the best strategy for incorporating your entity. As a general rule, however, if you know you will be soliciting venture capital (VC) in the next few years, it is probably worth incorporating in Delaware. The corporation is the preferred entity for VC. Investors typically prefer the benefits offered in Delaware for their investment. Also, if the entity and its investors want to make an initial public offering (IPO), Delaware is the primary choice for IPOs. By incorporating in Delaware, it tells your VC investors that you are knowledgeable and proactive by taking the initiative and incorporating in Delaware.

If you are not sure if you will be seeking VC and you want to save money, you should incorporate in California. If you later decide to solicit VC, the fact that you incorporated in California will not prevent you from taking VC funds. We can assist you with merging or converting your entity into a Delaware corporation.

Contact us today to schedule your initial consultation. The attorneys at The Swenson Law Firm provide a variety of business law services to entities of all sizes.

The post Why Should My Business Incorporate in Delaware? appeared first on The Swenson Law Firm - Providing Guidance and Protection to California Businesses and Employers .

Should my Start-Up Business Use Interns?

Fri, 17 Apr 2015 08:00:00 GMT

To avoid being penalized for unpaid wages , your company should pay its interns at least minimum wage, with college credit for the internship, and/or follow a strict training program. However, if you decide to use unpaid interns, you should follow the six-prong test published by the Department of Labor to help ensure you comply with the law:

If your company’s relationship with an intern meets ALL of the above criteria, an employment relationship does not exist under federal law. In other words, the minimum wage and overtime provisions are not applicable to your interns. However, you should still confer with a local employment law attorney to understand what your state law requirements are and if you are in compliance with them.

The post Should my Start-Up Business Use Interns? appeared first on The Swenson Law Firm - Providing Guidance and Protection to California Businesses and Employers .

Start-Up Businesses, Employees & Independent Contractors

Wed, 15 Apr 2015 08:00:00 GMT

Employees
If you are interested in hiring a part-time or full-time employee, it is imperative that you obtain the proper documentation from your new hires. This includes the Form I-9 used to confirm the identity and employment authorization of individuals hired in the United States. You should also obtain a Form W-4 that will help you determine the accurate federal income tax to withhold from your employee. If you fail to obtain certain required forms, it could result in costly fines and penalties to your company or to you as the owner.

Independent Contractors
It is common for start-up companies to want to avoid all the tedious requirements that come with hiring an employee, so they use independent contractors . Unfortunately, many new companies make the mistake of treating their independent contractor just like an employee, which can lead to trouble. If an employer treats an independent contractor no different from an employee, it can create an employer/employee relationship, despite what the parties’ intended.

How can an employer maintain the independent contractor relationship? Below are a few considerations:

If your start-up company needs assistance with determining whether an employee or independent contractor is the best way to obtain help, contact us today. The above are just a few examples of issues an attorney can help you with when starting a new company. Obtaining the right advice from the start can significantly increase the likelihood of your business being a success. Contact The Swenson Law Firm for help.

The post Start-Up Businesses, Employees & Independent Contractors appeared first on The Swenson Law Firm - Providing Guidance and Protection to California Businesses and Employers .

Steps You Can Take to Lower Your Legal Bill

Mon, 13 Apr 2015 08:00:00 GMT

If you need assistance with a legal matter and you would like to discuss the expected costs associated with handling it, contact the legal team at The Swenson Law Firm to schedule an initial consultation.

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Tips for Growing Your Start-Up

Thu, 09 Apr 2015 05:00:00 GMT

Although there is no special formula that ensures your start-up will experience instant positive results, there are a few steps you can take to move your business in the right direction:

The post Tips for Growing Your Start-Up appeared first on The Swenson Law Firm - Providing Guidance and Protection to California Businesses and Employers .

Trademarks & Taylor Swift

Tue, 07 Apr 2015 05:00:00 GMT

When a trademark application is filed, the applicant is allowed to select from one to forty-five classes for identifying its products or services. The U.S. Patent and Trademark Office charges the same amount whether you file a single application in numerous classes, or numerous applications in one class. So, many applicants file an application to cover a few different classes (such as music, fragrances and clothing), but Taylor Swift chose to file 16 separate applications!

Ms. Swift’s filings are likely a reaction to the lawsuit filed regarding her “LUCKY 13” trademark. Blue Sphere, Inc., which does business as Lucky 13, filed a trademark infringement lawsuit against Swift alleging that she harmed its business when she sold clothing bearing the phrase “Lucky 13” without obtaining Blue Sphere’s permission or a license. The case is still pending, but it is expected that the parties will reach a settlement.

Even so, Taylor Swift has learned her lesson and she is taking no chances with securing her trademark rights. By filing her trademark applications in numerous classes, she is safeguarding her right to use those marks as they apply to the same or similar goods. Of course, her comprehensive registrations do not prevent the use of similar marks being used in wholly unrelated classes. For example, using the term “Coke” for soda is impossible and it is likely difficult to register the name for any other beverages, you can probably use the term Coke for a pipe used in plumbing.

While Taylor Swift’s strategy of filing a separate application for each class may not make sense for you, it allows her to proceed with her efforts in all other classes if somebody’s mark becomes an issue in one class. Regardless, the take-home from the singer/songwriter’s efforts is that if you want to protect words, phrases or other important marks, you must take action to obtain a trademark on them.

If you need assistance with registering a trademark or help handling opposition to your trademark application, contact the legal team at The Swenson Law Firm to schedule an initial consultation.

The post Trademarks & Taylor Swift appeared first on The Swenson Law Firm - Providing Guidance and Protection to California Businesses and Employers .

What Types of Information can I Protect with a Trade Secret?

Fri, 03 Apr 2015 05:00:00 GMT

There are a wide variety of different types of trade secrets. Below are a few examples:

The interesting thing about trade secrets is that YOU must take action to safeguard them. You do not register a trade secret with a government agency like you do with a patent, copyright or trademark. Instead, you must take action to keep the confidential information a secret. As long as your trade secret is kept a secret, it is protected.

The Swenson Law Firm is located in Orangevale and we proudly serve businesses of all sizes from all over the State of California. Contact us today to learn more about how we can assist you with matters such as trademarks, defending lawsuits, business formation, contract negotiations, hiring employees, and protecting your intellectual property. With our years of complex business trial and litigation experience, we are an effective, efficient and affordable choice in representing you at the bargaining table and in the courtroom.

The post What Types of Information can I Protect with a Trade Secret? appeared first on The Swenson Law Firm - Providing Guidance and Protection to California Businesses and Employers .

How to Get to “YES” When Fundraising for your Start-Up

Tue, 31 Mar 2015 05:00:00 GMT

If you are new to being an entrepreneur, the fundraising process can be intimidating. Nobody likes to face rejection, but it is important to prepare youself to hear “no” and to keep on going. Below are a few pointers to improve your chance of successful fundraising for your business:

If you want to learn more about fundraising for your start-up company or how we can assist you with your business-related matters, contact us today to schedule your initial consultation. The attorneys at The Swenson Law Firm provide a variety of business law services to entities of all sizes.

The post How to Get to “YES” When Fundraising for your Start-Up appeared first on The Swenson Law Firm - Providing Guidance and Protection to California Businesses and Employers .

Protecting Your Customers From Data Breaches

Mon, 30 Mar 2015 05:00:00 GMT

If you’re not sure where to start in protecting your business from data breaches , below are a few considerations:

Taking these steps may seem extreme, but they could also save you the time and expense of future litigation.

If you are interested in learning more about safeguarding your business’s private information or how we can assist you with your business-related needs, contact the knowledgeable lawyers at The Swenson Law Firm to schedule an appointment.

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Are YOU Ready to be an Entrepreneur?

Fri, 27 Mar 2015 05:00:00 GMT

It’s all on your shoulders

Many entrepreneurs begin their company alone. While this is often necessary to save on expenses, it also means you are the one who can make or break your company. You will have to serve as the entity’s administration, accounting department, advertising department, IT services and provide any other necessary services. This can be a lonely, frustrating and exhausting time, so you have to prepare yourself. And, if practicable, consider working with a partner who can assist with all the necessities of running a business.

Funding

Many start-up companies don’t make it because they have insufficient funds . Before you jump at the first offer of money, however, it is important to fully consider what you will be required to give up in exchange for it. Also, you should strongly consider getting a mentor that can provide you advice and support when you need it. Finding the right investor and mentor can significantly impact your chance of success.

Employees

When it is feasible to hire employees, you will want to look for people who share your passion and also bring intelligence, skill and loyalty to your business. It can often be difficult for a start-up company to attract highly-qualified individuals. As a result, you may need to get creative with your employment offer (such as offering equity in the company or other advantages).

To help ensure your entity’s success, it is important to be realistic about becoming an entrepreneur. We can help you every step of the way.

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Reasons to Consider Starting an Online Business

Thu, 26 Mar 2015 05:00:00 GMT

Low overhead

You can start an online business out of your home, at a Starbucks or anywhere else that you can use your computer and access Wi-Fi. Removing the costs associated brick-and-mortar establishments is significant. However, not having an established location means that you must take active measures to get your name out there. Take advantage of your unlimited online customer base and advertise yourself to the whole world. You aren’t limited to the city where you are located, so market to your worldwide audience.

Revenue generations 24/7

Once your online business has been established and successfully marketed, it can start generating revenue for you around the clock. You are not limited to paying employees to work during normal business hours. Having a business that can make you money while you sleep isn’t too shabby!

Freedom

Many entrepreneurs are interested in online businesses because of the freedom and portability that they offer. You don’t have to be tied to one particular location, which can be liberating. However, for many it can also be their downfall if they are unable to maintain a good work ethic without structure. Having freedom and the ability to work from anywhere you want cannot be mistaken for the ability to slack-off. For true entrepreneurs, working hard when needed allows them to take advantage of the freedom to spend time with their families and enjoy other activities that sitting behind a desk would not allow them to do.

If you are interested in starting an online business or any other type of business, contact us today to schedule your initial consultation. The attorneys at The Swenson Law Firm provide a variety of business law services to entities of all sizes.

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Facebook Disclaimers – Do They Work?

Wed, 25 Mar 2015 05:00:00 GMT

According to Snopes.com , which verified that this disclaim is a hoax, the disclaimer reads like this:

Due to the fact that Facebook has chosen to involve software that will allow the theft of my personal information, I state: at this date of January 4, 2015, in response to the new guidelines of Facebook, pursuant to articles L.111, 112 and 113 of the code of intellectual property, I declare that my rights are attached to all my personal data drawings, paintings, photos, video, texts etc. published on my profile and my page. For commercial use of the foregoing my written consent is required at all times.

All social websites have terms and conditions that you agree to every time you post something. It is important that you read any updates to this agreement as well as any updates to the privacy policy. Posting the above disclaimer does nothing to change Facebook’s rights. If you are concerned with maintain control over your intellectual property, you should not be posting it on social media websites. However, if you feel compelled to post and you are worried about maintaining privacy, your best bet is to use Facebook’s privacy and applications settings. Anything that is posted for viewing by the public is considered fair game and not protected.

If you have questions regarding how to protect your intellectual property or how we can assist you with your business-related needs, contact the knowledgeable lawyers at The Swenson Law Firm to schedule an appointment.

The post Facebook Disclaimers – Do They Work? appeared first on The Swenson Law Firm - Providing Guidance and Protection to California Businesses and Employers .

Trademark Your App

Tue, 24 Mar 2015 05:00:00 GMT

It is important to work with a trademark lawyer who understands how a mobile application functions because your app may fall within numerous trademark classes. You will need to provide your attorney with a guide for how your mobile app works, including the information that will be downloaded or used by the consumer. It can make a difference in your trademark application whether or not the content is downloaded or simply accessed by the end-user.

According to the United States Patent and Trademark Office’s (USPTO) website, there are a variety of ways to describe goods and services related to mobile apps. For example, you may want to state that your app uses downloadable software and specify the function of the program. Or, you may describe the app as providing entertainment services that are not downloadable but presented by using wireless networks. However you choose to describe your mobile application, it is important to be thorough and accurate to ensure that you are fully protected.

We can review your unique app and help you prepare and file the proper trademark application to protect your mobile application. We can also discuss whether registering your mobile app will be sufficient to protect the non-mobile or web-based version of the same product.

If you need assistance with registering a trademark or help handling opposition to your trademark application, contact the legal team at The Swenson Law Firm to schedule an initial consultation.

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Caddies File Lawsuit Against PGA

Mon, 23 Mar 2015 05:00:00 GMT

The lawsuit, filed in the U.S. District Court for the Northern District for the Northern District of California, seeks to be certified as a class action on behalf of all United Sates caddies that have not been paid for wearing bibs with the Tour’s sponsors’ logos on them during tournaments. If certified, the class will consist of approximately 1000 caddies and likely seek to recover hundreds of millions of dollars in damages from the PGA Tour.

Hicks and the other caddies are claiming that while they are not the focus of televised tournaments, they are visible on-screen. The golfers rely heavily on their caddies for advice, emotional support and their expertise in all aspects of competitive golf. The caddy’s presence during the tournaments elevates the level of their golfer’s play, which in turn enhances the marketability of the tournament.

Although caddies are employed by the golfers and not the PGA Tour, they are still required to comply with the Tour’s regulations as required in their contract for participating in the tournaments. Interestingly, caddies are allowed to wear sponsored logos on their clothing during tournaments and to be paid for doing so by the apparel companies such as Nike, Under Armour, and others. However, the caddies are also asked to wear bibs that advertise the companies paying for the PGA Tour without receiving compensation. The court will be asked to decide whether the caddies should be compensated for wearing these bibs.

We will continue to monitor this case, so be sure to check back for updates. If you have a question regarding sports law or how we can assist you, contact the knowledgeable lawyers at The Swenson Law Firm to schedule an appointment.

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Tips Every Entrepreneur Should Follow

Mon, 09 Mar 2015 05:00:00 GMT

Obtain Knowledgeable Legal Counsel

The attorney you used for your divorce or to handle your speeding ticket may not be the best choice to assist your start-up entity. It is important to research the lawyers in your area to find one that has experience in representing small businesses. Don’t be afraid to interview several to find one that is the best fit for you and your company. Having the “right” attorney assisting your new business can place a significant role in the success of your company.

Use an Accountant

One of the most important factors in whether a start-up business makes it or not is funding and the entity’s bottom line. Getting financial advice from a seasoned accountant or CPA will help ensure that you are not caught unaware of certain financial obligations, including tax bills. Additionally, a tax professional can help your entity find ways to save money when preparing your tax returns.

Seek Quality Employees

When a small business owner is overwhelmed with work, it is easy to panic and want to hire somebody to help quickly. However, it is important that you do not settle when it comes to hiring your employees. The team you pick to help run your business can make or break you, so be picky.

Market Yourself

It is important for a new business owner to promote themselves and their company as much as possible. This means that you should take advantage of social media and all of your contacts. Every person you meet should be viewed as a possible client, customer or your next big deal!

The post Tips Every Entrepreneur Should Follow appeared first on The Swenson Law Firm - Providing Guidance and Protection to California Businesses and Employers .

Is your Company Website Protected?

Fri, 06 Mar 2015 05:00:00 GMT

Unfortunately, many business owners fail to take the appropriate action to safeguard their website. If you rely on one employee or independent contractor to maintain and update your website, it can cause serious issues if that individual stops working for you.

One important step you can take to protect your website is to own the code. It is common for small businesses to outsource the maintenance of their website, but it is crucial that you retain the right to control, modify and use the code. You should confirm that your development agreement or licensing agreement grants you these rights.

You will also want to ensure that your company will be provided copies of all developed code, even if you have hired a contractor to host your website. This is crucial because your company cannot change contractors or decide to host the website itself without the code. Make sure you have this right in your contract from the beginning, because it can be difficult to negotiate once an issue arises.

If your website provides visitors with information about your company’s products or services, it is imperative that you identify any trademarks . Even if you have not registered your trademark with the U.S. Patent and Trademark Office (USPTO), you may want to consider using a “TM symbol to put website visitors on notice that your company considers the word or phrase to be its valuable trademark.

There are other factors to consider when creating your website, especially if your site provides a unique function that could be considered an invention that should be protected by a patent. For assistance in determining the best means for protecting your website and trademarks, contact our knowledgeable attorneys to schedule an appointment. The attorneys at The Swenson Law Firm provide a variety of business law services to entities of all sizes.

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What to Cover in your Partnership Agreement

Wed, 04 Mar 2015 05:00:00 GMT

A partnership agreement is especially important in some states where it is not a breach of contract for a partner to withdraw from an oral partnership agreement. See Gelman v. Buehler . This means that if there are no specific terms or obligations outlined in the underlying agreement, the partnership can be dissolved unilaterally.

Below are a few essential terms to include in your written partnership agreement:

If you are interested in creating a partnership agreement or how we can assist you with your business-related needs, contact the knowledgeable lawyers at The Swenson Law Firm to schedule an appointment.

Selling Your Business

Fri, 27 Feb 2015 05:00:00 GMT

Below are a few pointers on how to know when it may be time to consider selling:

The above pointers are just a few matters you should consider before selling your business. To learn more, call us to schedule an appointment.

The post Selling Your Business appeared first on The Swenson Law Firm - Providing Guidance and Protection to California Businesses and Employers .

Why Would Somebody Object to my Trademark?

Thu, 26 Feb 2015 05:00:00 GMT

In fact, a trademark owner often asserts rights that exceed the scope necessary to protect their trademark in an effort to limit competition. This strategy is often referred to as “trademark bullying,” because it is often used by large companies with extensive resources to restrict the rights of smaller companies that cannot fight false claims.

In addition to an objection based upon likelihood-of-confusion, a party may challenge a trademark application based upon the following:

There are many other reasons a party may object to your trademark application, but the primary focus is on how the opposing party will be damaged in a direct way if the mark is registered.

If you need assistance with registering a trademark, help handling opposition to your trademark application, or filing a challenge to a trademark registration, contact the legal team at The Swenson Law Firm to schedule an initial consultation.

The post Why Would Somebody Object to my Trademark? appeared first on The Swenson Law Firm - Providing Guidance and Protection to California Businesses and Employers .

Licensing your Trademark

Fri, 13 Feb 2015 05:00:00 GMT

As the owner of the trademark, it is important that you have the ability to monitor or control the licensee’s use. For example, a licensor will want to ensure that consumers obtain the same quality of goods or services regardless of whether it is the licensee or licensor that is selling the goods or providing the services. This why chain restaurants appear similar and provide the same quality of food, regardless of what state you are in.

One of the primary reasons you should consider trademark licensing is to generate revenue. Once your trademark reaches a certain level of recognition, you can make a significant amount of money by allowing others to use it. Additionally, trademark licensing provides you a means for expanding your business. In fact, your licensee may provide you benefits in areas such as marketing, distributions, sales or even manufacturing capabilities. Your mark is also likely to have increased consumer recognition because the more it is used, the more the public will become aware of it. Finally, trademark licensing can be used as a means for resolving infringement disputes. Rather than pursuing costly litigation, you may be able to convince the infringer to enter a licensing agreement.

The attorneys at The Swenson Law Firm provide a variety of business law services to entities of all sizes. Contact us today to schedule your initial consultation.

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Will Licensing my Trademark Impact its Registration?

Thu, 12 Feb 2015 05:00:00 GMT

If you own a trademark and retain the authority to control the nature and quality of the services and goods linked to it, you are allowed to register it. In other words, if you enter a licensing agreement allowing another party to use the mark, but your keep control over the nature and quality of the goods and services, the use of the trademark will inure to your benefit. However, there is an exception to this rule if the mark is being used in a manner that will deceive the consumer.

If your trademark application states that the mark is being used by a related company, the U.S. Patent & Trademark Office (USPTO) will not require you to explain how you are controlling the trademark. You don’t even have to record the licensing agreement in the United States, but you may be required to do so in other countries. However, it is imperative that your licensing agreement contains a provision granting you (as the licensor) the authority to continue to control the nature and quality of the goods and services, even though the Examining Attorney will not question you about your relationship with the licensee.

How do you retain control over the trademark? There are a variety of ways, but below are a few common examples:

If you fail to retain and exercise adequate control over the goods or services of the licensee, it could result in allegations that you have abandoned your rights in the trademark.

Licensor’s can significantly benefit from licensing a trademark, but it is crucial to have a carefully drafted licensing agreement to protect you and your rights. If you are interested in licensing your trademark or you need help registering a trademark, contact the knowledgeable attorneys at The Swenson Law Firm to schedule your appointment.

The post Will Licensing my Trademark Impact its Registration? appeared first on The Swenson Law Firm - Providing Guidance and Protection to California Businesses and Employers .

Is Your Mark Adequately Descriptive?

Wed, 11 Feb 2015 05:00:00 GMT

The Examining Attorney typically begins the evaluation by considering the dictionary meanings of the trademark. However, if the mark does not have a dictionary meaning, it doesn’t mean that it doesn’t have a recognized meaning. In fact, the recognized meanings of words can change over time. Thus, the timing of your application can play an important part in whether your mark will be rejected as merely descriptive. Other important factors to consider are as follows:

We can help you avoid using merely descriptive trademarks and having your application refused. Contact us to learn more about creating a distinctive trademark and let us help you evaluate it in relation to the goods, services or applicable industry. The Swenson Law Firm is located in Sacramento County and we proudly serve businesses of all sizes from all over the State of California.

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Can My Name be our Trademark?

Fri, 06 Feb 2015 05:00:00 GMT

If you are interested in using your surname (last name) as the mark for your business, you must meet a “distinctiveness” test. In other words, the law will not protect a mark that is only a surname without evidence that it has “acquired distinctiveness.” Below are five factors used to determine if acquired distinctiveness must be shown:

In sum, if the consumer’s primary impression of the mark is that of a surname (and not a trademark), acquired distinctiveness must be proven.

If you are interested in using your first name and last name as a trademark, you can typically do so without proving acquired distinctiveness because together they are considered to be inherently unique. The same rule typically applies if you add two initials to a last name. It is important that your personal name be used in a way that is recognized by the public as identifying the source of goods or services.

If you are interested in using your name as a trademark, let us help. We can assist you with understanding whether or not acquired distinctiveness must be proven as well as determining whether your name has already been registered as a trademark.

If you are interested in learning more about selecting a trademark, contact the legal team at The Swenson Law Firm for assistance.

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What is a 2(d) Trademark Refusal?

Wed, 04 Feb 2015 05:00:00 GMT

One of the common reasons for a trademark application being denied is if the mark resembles a registered trademark and is likely to cause confusion in the marketplace. These types of denials are commonly referred to as Section 2(d) refusals and we have experience overcoming the objection.

The Examining Attorney will conduct a search of the U.S. Patent and Trademark Office’s (USPTO) records, but not perform a search of unregistered rights. Thus, the date of first use of the mark does not play a role in the Examining Attorney’s decision. If you want to challenge prior rights in a mark, we can help you file a proceeding with the Trademark Trial and Appeal Board. It is imperative to ensure that all of the probative evidence is submitted before the Examiner makes his or her final decision regarding the issue of likelihood of confusion. Some of the factors that will be considered include:

The above list is not exhaustive and there are several other factors to be considered. Let us help you assess any similarities between your mark and other marks, as well as the similarities between the goods or services provided, in conducting a likelihood of confusion analysis before your application is submitted to the Examiner.

If you are interested in learning more about 2(d) trademark refusals or how we can assist you with your other business-related needs, contact the knowledgeable lawyers at The Swenson Law Firm to schedule an appointment.

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Can You Lose Rights in a Trademark?

Fri, 30 Jan 2015 05:00:00 GMT

Once you obtain the rights to a trademark , you want to make sure you hang onto it. The most common way a trademark is lost is by abandonment, or stopping use of the mark with no intention of using it again.

There are also ways the owner of a mark can unintentionally lose the rights to it. In some countries, it may be possible to lose your rights in a trademark by granting a license to use the mark to other parties without maintaining control over the nature and quality of the goods or services the licensee sells under the trademark.

It may also be possible to lose rights to a trademark by misusing it (or failing to prevent the misuse of it by others). If the end result is that the mark becomes to be used as a generic name by the public, the trademark loses its significance. For example, escalator was once a trademarked name, but it later became a generic name of the product for which it had been used as a brand.

Below are a few tips for preventing the loss of your trademark rights:

Use the mark as an adjective with the generic name of the product following it (KLEENEX tissues)

Do not pluralize singular trademarks (OREO, not OREOS)

Do not make a modify a mark from its possessive form (LEVI’s jeans)

Do not use marks as verbs (you are photocopying, not xeroxing)

The attorneys at The Swenson Law Firm provide a variety of business law services to entities of all sizes. Contact us today to schedule your initial consultation.

The post Can You Lose Rights in a Trademark? appeared first on The Swenson Law Firm - Providing Guidance and Protection to California Businesses and Employers .

Why you MUST Conduct a Clearance Search for your Trademark

Thu, 29 Jan 2015 05:00:00 GMT

It is extremely important to run a clearance search for your trademark to verify that it is available for you to register at the United States Patent and Trademark Office (USPTO). Conducting a search will determine if there is a “likelihood of confusion” with the consumers as to the source of the goods or services offered by the mark.

The goal of conducting a clearance search is to determine whether the mark (or a similar mark) is being used by another party in the same or related industry. If you discover a third party is using a similar mark in an unrelated industry, it could also be an obstacle if it has obtained a certain level of public recognition. Famous or well-known trademarks are given broad protections. Conducting a search will allow you to discover whether or not your chosen mark will infringe upon any other parties’ rights in a protected mark.

The reason it is vital that you perform a clearance search is to save yourself time, money, and resources. It also helps to eliminate potential litigation over the legitimacy of your use of the mark. Although you can conduct the search on your own, it is wiser to obtain the assistance of a knowledgeabel trademark attorney. You can easily miss a mark that would cause a likelihood of confusion because you didn’t search the phonetic variations of your mark.

Failure to conduct a proper search could, at a minimum, result in your application being rejected. However, worse case scenario, you could have a trademark infringement lawsuit filed against you. This type of litigation can be devastating to a company, and it is easily preventable by having a thorough search of your mark performed.

In the United States, it is essential to search both federal and state registers, as well as unregistered use. The examiners at the USPTO do not search unregistered marks, so failure to have this type of search performed in advance could result in a trademark infringement lawsuit. Thus, paying a small fee upfront to protect yourself can save you signifiant sums in the future.

If you are interested in learning more about conducting a clearance search for your trademark, contact the legal team at The Swenson Law Firm for assistance.

The post Why you MUST Conduct a Clearance Search for your Trademark appeared first on The Swenson Law Firm - Providing Guidance and Protection to California Businesses and Employers .

How to Identify your Trademark

Wed, 28 Jan 2015 05:00:00 GMT

Once you have properly registered a trademark, it is important to identify it so the public has notice that it is a protected mark. Certain symbols or designations are used to indicate trademarks, including ®, Reg., TM and SM. The ® symbol and “Reg.” provide notice that the mark is registered in one or more countries and that the owner may be entitled to recover monetary damages against infringers. The “TM” and “SM” designations are used for marks that are not registered, but give notice that the user intends to claim trademark rights in the mark. The use of these symbols does not guarantee that the owner or user will be successful in registering the trademark.

Every country has differing trademark rights, so it is imperative that you verify what your rights are under local law before using a mark. In fact, when it comes to asserting trademark rights, it is wise to obtain the advice and guidance of an experienced attorney.

Trademark infringement is serious business. Litigation can be expensive and even result in your company going bankrupt. Don’t put the success of your business in jeopardy by not following the proper procedures for selecting your trademark and establishing your rights in it.

The Swenson Law Firm is located in Sacramento County and we proudly serve businesses of all sizes from all over the State of California. Contact us today to learn more about how we can assist you with matters such as trademarks, defending lawsuits, business formation, contract negotiations, hiring employees, and protecting your intellectual property. With our years of complex business trial and litigation experience, we are an effective and efficient choice in representing you at the bargaining table and in the courtroom.

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Establishing Rights in a Trademark

Fri, 23 Jan 2015 05:00:00 GMT

Establishing your trademark can be accomplished through registeration. However, in some countries, you can establish common law rights by using a mark. It should be noted that registering your mark provides you broader rights and stronger protections. In countries that don’t recognize common law rights in a mark, the first to register a trademark owns the exclusive rights to it.

To register a trademark, you must submit an application to the national trademark office in the country where you want to claim the mark. In the United States, it is the U.S. Patent and Trademark Office (USPTO). The application typically requests the following general pieces of information:

Name and address of the applicant

A representation or drawing of the mark (show how the mark will be or has been used)

A list of the goods or services to be covered by the registration

Payment for the filing fee

Once an application for the trademark has been filed, a trademark office examiner will review it. The examiner will determine if the formal requirements of the application have been met and whether the mark is merely descriptive (and not registrable), and possibly whether the mark is sufficiently unique when compared to other registered trademarks. If the examiner is satisfied that the trademark appliation satifies the necessary requirements, it is typically published by the trademark office. Any party who is concerned they will be damaged by the registration has the opportunity to object to the application. If no objections are received, the trademark application will be granted.

A trademark can remain valid indefinitely, provided the registration is timely renewed. It may also be necessary to provide proof of continued use for the registration to remain in effect. In many countries, there are cancellation procedures that allow third parties to request a mark to be cancelled if it has not been used in the country for an established amount of time.

If you are interested in learning more about establishing rights in a trademark or how we can assist you with your business-related needs, contact the knowledgeable lawyers at The Swenson Law Firm to schedule an appointment.

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Tips on Selecting a Trademark for your Business

Wed, 21 Jan 2015 05:00:00 GMT

Choosing a trademark for you company is not easy. You want to pick something that will describe your goods or services that is memorable, but as a general rule, terms that are merely descriptive are often difficult to protect with a trademark. In contrast, the more descriptive your mark is of the goods and services, the more likely your competitors are to try to use it. Interestingly, some of the strongest trademarks have no meaning or relation to the goods or services for which they are used.

In categorizing the strength of marks, the following factors should be considered:

Fanciful marks that are distinctive and will catch the public’s attention

Made-up words that mean nothing other than as a brand name (for example, XEROX copiers)

Marks that have a common meaning, but not in relation to the goods or services (for example, APPLE computers)

Marks that suggest some positive attribute of the goods or services, but that don’t necesssarily describe them (for example, VOLKSWAGEN for cars)

Marks that are descriptive and the public recognizes them as trademarks due to extensive use and marketing efforts (for example, “Blue Ribbon” beer)

It is important to understand that deceptive or misleading terms cannot be registered as a mark. Before you commit to a certain mark, it is important to have a seasoned attorney conduct a search to determine if somebody else has rights to the same (or similar) mark. It can save you a lot of time and money to know about a potentially conflicting mark before you invest heavily in it. Additionally, it is typically not a valid defense in a trademark infringement lawsuit to claim you were unaware of the conflict.

The type of goods and services the mark will be used for and the countries where it will be used typically dictate the extent of the search needed. Basic trademark searches investigate the trademark registration databases. A more thorough search can include other sources which include company names, trade publications and the Internet.

If you are interested in learning more about selecting a trademark, contact the legal team at The Swenson Law Firm for assistance.

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Does Your Business Protect its Customer’s Private Data?

Fri, 16 Jan 2015 05:00:00 GMT

You should strive to minimize the amount of private information you retain in order to reduce your exposure to liability. By taking a few simple measures, you can save yourself the time and cost of future litigation.

The attorneys at The Swenson Law Firm provide a variety of business law services to entities of all sizes. Contact us today to schedule your initial consultation.

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Fraud Claim against Your Business? Is it Really a Breach of Contract Claim?

Wed, 14 Jan 2015 05:00:00 GMT

If your business is facing allegations of fraud, you probably have several defenses available, including:

Inability to prove a material misrepresentation . There are several elements that must be established to prove a valid fraud claim. It is common for a fraud allegation to fail because the plaintiff cannot prove a material misrepresentation of presently existing or past fact. For example, if a manufacturer promises to ship a product at a future date and fails to keep the promise, the statement is not about a presently existing or past fact. Most promissory statements are the basis for a breach of contract allegation, not a fraud claim.

Puffery and opinions . A fraud allegation cannot be supported by a statement of puffery or opinion. There is no actual misrepresentation because an opinion is not a statement of fact.

Conclusory statements . The law requires the plaintiff to meet a heightened pleading requirement when alleging fraud. This means that the plaintiff must set forth the fraud allegations with particularity. Many complaints filed by plaintiffs merely set forth conclusions without stating the particular facts that support the recitations for a fraud claim, which is insufficient for a valid claim of fraud.

If your company is facing a lawsuit that alleges a claim of fraud, let us help. The Swenson Law Firm is located in Orangevale and we proudly serve businesses of all sizes from all over the State of California. Contact us today to learn more about how we can assist you with matters such as defending lawsuits, business formation, contract negotiations, hiring employees, and protecting your intellectual property. With our years of complex business trial and litigation experience, we are an effective, efficient and affordable choice in representing you at the bargaining table and in the courtroom.

The post Fraud Claim against Your Business? Is it Really a Breach of Contract Claim? appeared first on The Swenson Law Firm - Providing Guidance and Protection to California Businesses and Employers .

Publix Settles Class Action Lawsuit over its Background Checks

Fri, 09 Jan 2015 05:00:00 GMT

The Fair Credit Reporting Act (FCRA) requires an employer to provide written notification to employees (or potential employees) before procuring a consumer report about them. The FCRA requires that this notice be “in a document that consists solely of the disclosure.”

Erin Knight and the class members alleged that the disclosure used by Publix contained release language that violated the FCRA. The release language in issue stated: “I release Publix Super Markets, Inc., its employees, its authorized agents and representatives from any liability in connection with any decisions made concerning my employment based on information reported.”

It is common for employers to include release language in FCRA authorization forms, but the Publix lawsuit highlights the importance of providing the required FCRA disclosure as a separate document. The FCRA disclosure should not include any other content. If you choose to include release language, it should be provided in a separate document.

Due to its one sentence release, Publix has agreed to pay $6.8 million to settle the class-action lawsuit. After attorney’s fees and costs are deducted, each of the approximately 90,000 class members will receive an estimated $48.

Employers must understand that violations of the FCRA can result in significant damages. In fact, the law allows an award of $100 – $1,000 for each willful violation of the FCRA. If you procure consumer reports as part of your background check for employees or job applicants, you should carefully review your FCRA disclosures to ensure compliance with the Act.

If you have questions regarding the FCRA disclosure or any other employment law matter, contact The Swenson Law Firm to schedule your initial consultation.

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Can Your Business Benefit from the “Internet of Things?”

Wed, 07 Jan 2015 05:00:00 GMT

How can the Internet of Things assist your business? It begins with realizing the benefits that can be obtained from connecting devices to the worldwide web. Consider the following examples:

If you are an entrepreneur interested in taking advantage of the opportunities being created by the Internet of Things, you may want to focus on creating methods for delivering accurate data. If the IoT is only has beneficial as the data it receives, developing tools and methods for delivering the data is key. There are many other areas where an entrepreneur can take advantage of the IoT and how it will change the business world.

If you are interested in learning more about the Internet of Things or how we can assist you with your business-related needs, contact the knowledgeable lawyers at The Swenson Law Firm to schedule an appointment.

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Pros & Cons of a Limited Partnership

Fri, 02 Jan 2015 05:00:00 GMT

A LP is commonly used by businesses that partner on a single project or for a limited term. For example, LPs are frequently used in real estate development projects. The general and limited partners work together on a construction job with the limited partners investing money while the general partners manage the daily operations of the business venture. A LP is attractive to investors who want to invest their money, but also want limited liability.

Below are a few of the other advantages offered by forming a LP:

There are a few disadvantages of a LP that must be considered as well, including:

The key to a successful LP is the LP agreement. It must be carefully drafted by a professional and properly maintained once formed. If you are interested in creating a limited partnership, contact the legal team at The Swenson Law Firm for assistance.

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What to Include in a Letter of Intent

Wed, 31 Dec 2014 05:00:00 GMT

In short, you want to be as concise as possible and work to ensure that the seller and buyer on the same page to avoid disputes.

The attorneys at The Swenson Law Firm provide a variety of employment law services to businesses of all sizes. Contact us today to schedule your initial consultation.

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The EEOC’s Viewpoint on Separation Agreements

Mon, 29 Dec 2014 05:00:00 GMT

The EEOC has recently filed lawsuits against several companies asserting their separation agreements are overly broad. The EEOC has advised that separation agreements should make it clear that employees do not waive their right to file charges with the EEOC or participate in the EEOC’s investigations by signing the separation agreement, even though it is permissible for the employee to waive claims for damages under the laws the EEOC enforces.

While employers are waiting for pending cases to be decided before they have clear guidance on what the EEOC expects, below are a few general guidelines for evaluating your separation agreements:

The Swenson Law Firm is located in Orangevale and we proudly serve businesses of all sizes and employers from all over the State of California. Contact us today to learn more about how we can assist you with matters such as business formation, contract negotiations, hiring employees, protecting your intellectual property and defending lawsuits. With our years of complex business trial and litigation experience, we are an effective, efficient and affordable choice in representing you at the bargaining table and in the courtroom.

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California’s New Law RE: Sexual Harassment Training

Fri, 26 Dec 2014 05:00:00 GMT

California Government Code section 12950.1 requires employers with 50 or more workers to provide all supervisors with at least two hours of sexual harassment prevention training within six months of the date he or she becomes a supervisor. Going forward, the supervisor must receive training at least once every two years.

AB2053 amends this section and requires applicable employers to comply with the current requirements, but to also train supervisors to prevent abusive conduct. The law defines “abusive conduct” as follows:

For purposes of this section, “abusive conduct” means conduct of an employer or employee in the workplace, with malice, that a reasonable person would find hostile, offensive, and unrelated to an employer’s legitimate business interests. Abusive conduct may include repeated infliction of verbal abuse, such as the use of derogatory remarks, insults, and epithets, verbal or physical conduct that a reasonable person would find threatening, intimidating, or humiliating, or the gratuitous sabotage or undermining of a person’s work performance. A single act shall not constitute abusive conduct, unless especially severe and egregious.

The new law does not provide details about how long the training should focus on “abusive conduct” prevention. However, employers should immediately start taking steps to implement training that complies with the new law.

It should be noted that the new law does not establish a cause of action for “abusive conduct” in the workplace. AB2053 does not define abusive conduct as being illegal. The primary reason is that making such conduct illegal is it would be difficult to differentiate between daily management or disciplinary actions versus malicious actions taken by a manager. However, there is potential for abusive conduct to eventually be established as a cause of action, so it is essential for employers to comply with the new law and start training their supervisors accordingly.

If you have questions regarding the new law or any other employment law matter, contact the knowledgeable lawyers at The Swenson Law Firm to schedule an appointment.

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Workplace Bullying

Wed, 24 Dec 2014 05:00:00 GMT

An employer that fails to stop workplace bullying is opening itself up to liabilty for violence in the workplace and harassment litigation. Additionally, employees who are bullied at work typically do not want to go to work and when they are at work, their performance is substandard.

The difficulty for employers is determining the difference between harmless banter between co-workers and bullying. There are a few signs that you can look for to help determine if bullying is occuring, including:

The first step in preventing workplace bullying is to create a policy. The policy should define what bullying is, clearly state that it is prohibited, and set forth ways a bullied employee can obtain recourse. You may also consider outlining an disciplinary action that may occur if bullying behavior occurs. All supervisors and managers should receive proper training on the policy. The best training course will include examples of real-life scenarios that may arise and how the supervisor should respond.

To learn more about the new law and an employer’s obligations, contact the legal team at The Swenson Law Firm .

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Retaining Employment Records

Fri, 19 Dec 2014 05:00:00 GMT

There is no bright line rule to follow because there are a variety of mandated lengths of time for how long an employer must retain employment records. This is true whether the records are kept in paper or digital form. As a result of there being so many different retention times for employment records, many employers use a general guideline of maintaining the employee’s file for the time the employee is employed, plus four years.

This general guideline covers most laws, but there are three types of records that are required to be retained for a longer period. It is important to remove these documents from a personnel file before it is disposed of. They are:

Employers must pay close attention to employment record retention policies and practices. The retention requirements are the same whether you maintain the information in physical or electronic format, but you must properly file, index and store the records in whatever form you choose. In other words, a pile of papers can be misplaced in your cabinets and electronic data can disappear on your hard drive if you do not have procedures in place to ensure the records are properly maintained.

If you have questions regarding an employment matter, we can help. Contact the attorneys at The Swenson Law Firm to schedule your appointment.

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Start Ups & Your Business Name

Wed, 17 Dec 2014 05:00:00 GMT

Trademark Registration

You will want to research your idea for the name of your business with the U.S. Patent and Trademark Office (USPTO). It is important to confirm that your business name is not so similar to an existing mark of an entity that operates in the same industry as you that there will be a “likelihood of confusion.” If the USPTO believes that consumers would mistakenly confuse the similar marks or believe that the goods or services come from the same source, the registration of your mark will be denied.

Register DBA Names

You must make a name availability inquiry with the applicable state agency that governs business registrations. A “DBA” is a “doing business as” name, which is less formal than an entity’s formal name registered with the applicable state’s agency. It is important to search your state’s registry to confirm that the formal name and DBA name of your business is distinguishable from existing names previously registered. Once you confirm that the name is available, you should proceed with the filing process to reserve the name and ensure that you protect it. In California, the Secretary of State handles business registrations.

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Hiring Your First Employee

Fri, 12 Dec 2014 05:00:00 GMT

Every business has its own unique needs and each employment contract should be tailored to those needs, but below is some general guidance in what to include in your agreement:

If you need assistance drafting an employment contract, we can help. The attorneys at The Swenson Law Firm provide a variety of employment law services to businesses of all sizes. Contact us today to schedule your initial consultation.

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FMLA Facts

Wed, 10 Dec 2014 05:00:00 GMT

What is a “covered employer?”

The FMLA only applies to certain employers. The criteria of a covered employer include:

Who are “eligible employees?”

An employee must be an eligible employee before he or she is entitled to take FMLA leave. An eligible employee works for an employer covered by the FMLA, has worked for that employer for a minimum of 12 months, and has served at least 1,250 hours for the employer during the 12 month period immediately preceding the leave, and works at a location where the employer as a minimum of 50 employees within 75 miles.

It is important to understand that the required 12 months of employment do not have to be consecutive. In most cases, any time previously served for the same employer can be included in meeting the 12-month requirement.

When is an eligible employee entitled to FMLA leave?

The FMLA allows an eligible employee to take up to 12 work weeks of leave in a 12-month period for a variety of reasons, including:

If you have questions regarding the FMLA or any other employment law matter, contact the knowledgeable lawyers at The Swenson Law Firm to schedule an appointment.

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What Important Written Agreements Does Your Business Need?

Fri, 05 Dec 2014 05:00:00 GMT

Owner Agreements

If your business has been created as a legal structure such as a limited liability company (LLC), corporation or partnership, you should have a written contract with all of the co-owners. The most common types of owner agreements include Operating Agreements, Founders’ Agreements, Shareholders’ Agreements and Partnership Agreements. Each of these contracts serve to establish the deal struck between the owners of the entity, which may include percentages of ownership, salaries, capital contributions and what will happen to the business if the co-owners decide to part ways.

Worker Agreements

Even if you don’t have employees, you probably have other parties that work for you, such as independent contractors. This includes third-parties you have retained to provide accounting services, manage your databases or other similar jobs. Even though they are not your full-time employee, it can be beneficial to have a written contract that clearly and concisely establishes your relationship, the services to be provided, deadlines or timing schedules, and payment details. You should also consider including confidentiality, non-solicitation, and assignment of work product provisions, if applicable to your business.

Customer and Vendor/Supplier Agreements

Depending on your industry, it can be helpful to have a “contract” with your customer that sets forth the terms of service, privacy policies or what the consumer can expect from you. If your business deals with vendors or suppliers, having a written agreement in place is one of the primary ways you can ensure your needs (as well as your customer’s needs) are met. A vendor or supplier contract should cover topics such as indemnification, exclusivity and limitations of liability.

There are many other types of written agreements that may be necessary to safeguard your business. To learn more, contact the legal team at The Swenson Law Firm .

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The Importance of an Effective Letter of Intent

Wed, 03 Dec 2014 05:00:00 GMT

Both the seller and the buyer should retain experienced legal counsel to assist them at the LOI stage of the process. Below are a few tips to consider when negotiating the LOI:

If you are a seller of buyer of a business, let us help you with every step of the transaction. Contact the attorneys at The Swenson Law Firm to schedule your appointment.

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EEOC Alleges FedEx Failed to Accommodate Deaf Workers

Fri, 28 Nov 2014 05:00:00 GMT

The lawsuit was filed in the U.S. District Court of Maryland in Baltimore. FedEx Ground allegedly employed numerous deaf package handlers across the country and failed to provide reasonable and necessary accommodations, including American Sign Language interpretation or closed-captioning training videos when the deaf employees were on required tours, during orientation or during staff or safety meetings. The EEOC also claims that FedEx failed to provide necessary equipment substitutions such as scanners that vibrate rather than beep and using flashing safety lights on moving equipment.

FedEx’s alleged conduct constitutes a violation of the Americans with Disabilities Act (ADA), which prevents an employer from discriminating on the basis of an employee’s disability. The ADA requires employers to provide reasonable accommodations to job applicants and employees with a disability. The only exception is if the employer can prove that providing the accommodation would constitute an undue hardship.

The case is EEOC v. FedEx Ground Package System, Inc ., Civil Action No. 1:14-cv-03081-WMN).

If you have questions about the case discussed above or any other employment law matter, contact the attorneys at The Swenson Law Firm.

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Advice for Sole-Owner LLCs

Thu, 27 Nov 2014 05:00:00 GMT

A creditor’s lawyer will conduct an investigation to determine whether you have maintained the appropriate separation between you and your business. In other words, has your business acted like an entity? Below are a few steps to take to ensure it has and to limit your personal liability:

These are just a few tips for limiting your personal liability as a single-owner LLC. To learn more, contact the business lawyers at The Swenson Law Firm .

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Tips for Effective Compliance Training

Wed, 26 Nov 2014 05:00:00 GMT

Below are a few employee training tips for California employers:

The above are just a few tips to consider in your next sexual harassment compliance training. If you have questions or you need assistance with your compliance training, contact us to schedule your appointment.

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Whistleblower Awards on the Rise

Fri, 21 Nov 2014 05:00:00 GMT

This award of more than $30 million shows the international breadth of our whistleblower program as we effectively utilize valuable tips from anyone, anywhere to bring wrongdoers to justice. Whistleblowers from all over the world should feel similarly incentivized to come forward with credible information about potential violations of the U.S. securities laws.

Employers should be aware that rewards to whistleblowers have been increasing in amount and in frequency. The SEC reports that in 2012 it paid its first reward, it paid four rewards in 2013, and it has paid nine whistleblowers in 2014. The government continues to encourage whistleblowers to come forward while warning employers not to impede a whistleblower from coming forward. In fact, the SEC has indicated that it will target businesses and their in-house attorneys for policies or contracts that prohibit employees from reporting to the agency.

If your business has policies, codes of conduct or employee agreements that may be viewed as preventing whistleblowers from providing information to the SEC, it is time to take corrective action. Let us help you create a system for encouraging whistleblowing within your organization before reporting to the government. Having issues or problems reported internally before being reported externally can save you time, money and heartache.

To protect your company from getting in the crosshairs of the SEC, contact the attorneys at The Swenson Law Firm.

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Trademark Infringement

Thu, 20 Nov 2014 05:00:00 GMT

Trademark law can be complex. The United States Patent and Trademark Office (USPTO) website has a wealth of information to assist you, but even a savvy business owner should consider getting legal help from a trademark lawyer . Below are a few important factors to consider if you believe your trademark has been infringed upon:

Customer confusion

One of the key issues that must be determined before a lawsuit is filed is whether your trademark has actually been violated. A trademark is considered to be infringed upon when consumers are likely to be confused by the duplicate use of the trademark and the mark is being used for goods or services that are in direct competition with each other. In other words, if another business is using your mark, is a customer likely to confuse the other business with your business?

Location

Another important issue is geographic location. If your business is only located in California and a similarly named company is located in Vermont, it is unlikely that your customers will confuse your local store with one in Vermont. However, if your company has a national presence, you may have a claim of infringement. Additionally, due to the widespread use of the internet in most markets, you may also be able to claim another business’s use of a similar mark online could negatively impact your business.

Similar enough

The two identifying marks don’t have to be identical for there to be infringement. You cannot add an “s” to the end of a name and claim it does not violate a trademark. Thus, when you are picking your name or logo, it is important to have an attorney assist you to ensure that you are not infringing on an existing trademark.

If you believe that a trademark has been infringed upon, take action. We can assist you with sending a “cease and desist” letter to the entity violating your mark and request that they stop using it. If the letter does not illicit the proper response, we can file a lawsuit to prevent further use of your trademark and seeking monetary damages.

If you have questions regarding trademark infringement or any other business law matter, contact the attorneys at The Swenson Law Firm .

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The EEOC’s Charge Handling Process

Wed, 19 Nov 2014 05:00:00 GMT

The party making the charges will provide information to the EEOC investigator who will determine whether unlawful discrimination has occurred. The EEOC may ask the employer to provide information such as a position statement, which is your side of the story. Your statement of position is extremely important, so let us help you ensure that it is strong and effective. The EEOC may also ask you to respond to a Request for Information (RFI), which is a request for you to produce relevant documents. In some cases, the investigator will also request an on-site visit and/or witness interviews.

It is important to understand that if the charge was not immediately dismissed by the EEOC upon initial review, it means that there is some basis for continuing the investigation. Thus, it is imperative for an employer to provide input and cooperate with the investigation. This means that you should work with the investigator and gather evidence to further the investigation, even if you believe the allegations are baseless.

On average, an EEOC investigation lasts approximately 180 days. However, delays in responding to the EEOC or providing evidence to the investigator can extend the time it takes to complete the investigation. While you probably want to complete the process as quickly as possible, it is also important to confer with us if you have any concerns regarding the scope of the information being sought.

When the investigation has been completed, the EEOC will issue its determination of whether discrimination existed or not. Depending on the outcome, there are a variety of options for both parties. To learn more about how we can help with EEOC investigations or other employment law related matters, contact the attorneys at The Swenson Law Firm .

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Mistakes to Avoid in Mergers & Acquisitions

Fri, 14 Nov 2014 05:00:00 GMT

Selling your business can be overwhelming. If you want to avoid making the above mistakes, contact the business lawyers at The Swenson Law Firm . We can help ensure you obtain a competitive price for your business while protecting your best interests and minimizing liabilities.

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Essential Legal Advice for your Start-Up Company

Wed, 12 Nov 2014 05:00:00 GMT

Choosing a Legal Structure

Selecting the most advantageous legal structure for your entity is vital. There are pros and cons to each type of legal entity type, so you must determine which is most beneficial for accomplishing your goals. Some of the most common entity formations are a limited liability company (LLC), partnership, C Corporation and S Corporation. To learn more about these types of entities, please read our blog titled “Selecting the “Right” Legal Structure for Your Business.”

Vesting Schedules

A vesting schedule is important to new entities because it creates the rights and obligations between the founders of the company. It can establish a balance between founders who operate the company and absent founders or those who leave early. Co-founders are able to obtain their stock when the company is first created, but a repurchase agreement executed by all of the founders, can provide the company the right to take the stock back for compensation. The agreement can provide the company’s right decreases over time which in turn allows the owners’ stake to increase over time while also providing for tax benefits, long-term capital gains treatment and voting rights. Additionally, the vesting schedule should provide for acceleration if the company is sold, changes control or an owner is fired.

Intellectual Property

A start-up company must take measures to protect its intellectual property . If your business uses independent contractors to perform work, you must ensure that they execute an assignment of intellectual property rights to the company when they are hired.

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Important Benefits of Trade Secret Protection

Fri, 07 Nov 2014 05:00:00 GMT

There are many advantages to protecting your proprietary information as a trade secret:

If you have questions regarding patents, trade secrets or other ways to protect your proprietary information, contact the attorneys at The Swenson Law Firm .

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Discrimination & Your Employment Practices

Wed, 05 Nov 2014 05:00:00 GMT

The Equal Employment Opportunity Commission (EEOC) enforces the laws prohibiting discrimination in the workplace. The EEOC investigates whether an employer uses neutral employment policies and practices that have a disproportionate negative effect on applicants or employees of a protected class and whether those policies or practices in question are related to the necessary operation of the business. Some of the areas the EEOC investigates include:

If you have questions regarding defending discrimination lawsuits or any other employment law matter, contact the employment attorneys at The Swenson Law Firm .

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When Should You Register Your Company’s Trademarks?

Wed, 29 Oct 2014 05:00:00 GMT

There are many benefits of registering your business’s trademark with the United States Patent and Trademark Office:

For a start-up company, the most important trademarks to protect are your business’s name and/or logo. If your mark has not been used in commerce, we can help you file an “intent to use” trademark application to safeguard your marks until your business starts operating. We can also help you properly register your trademarks and ensure your business is protected.

If you are interested in learning more about how to protect your start-up company’s intangible assets, contact us for help . We are located in Sacramento County, and serve clients throughout California.

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Breach of Contract Lawsuit Basics

Fri, 24 Oct 2014 05:00:00 GMT

When a party to a contract fails to fulfill its obligations under the agreement, it is referred to as a “breach” of the contract. A breach can be considered “material” or “immaterial,” which impacts the legal remedies available for the other party to the contract.

When a contract dispute arises, the parties may try to resolve it between themselves. The contract may have a provision that requires the parties to attempt mediation before filing a lawsuit, or it may require the parties attend a binding arbitration. Depending on the complexity of the business transaction and the circumstances involved, a lawsuit is often necessary.

There are a variety of remedies available for the party harmed by the breach of contract. The primary remedies include:

If you have questions regarding a breach of contract matter or any other business law matter, contact the attorneys at The Swenson Law Firm .

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Common Types of Employment Lawsuits

Wed, 22 Oct 2014 05:00:00 GMT

The employment lawyers at The Swenson Law Firm can assist you with taking preventative measures for avoiding lawsuits by employees. If, however, you have been sued by an employee, our seasoned attorneys are skilled at defending employers in these types of lawsuits as well. Contact us today for the advice and guidance you need.

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Steps for Protecting Trade Secrets from Untrustworthy Insiders

Wed, 22 Oct 2014 05:00:00 GMT

Before an employee departs from your company, you should plan ahead and be prepared to investigate his/her activities to determine if the employee has stolen trade secrets or otherwise compromised the security of your business. Below are a few steps to consider taking:

It is important to protect your company from outsiders and insiders. Taking precautionary measures can save you time and money in the long run. Contact The Swenson Law Firm for help.

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How Can a Business Lawyer Save You Money?

Fri, 17 Oct 2014 05:00:00 GMT

• Legal structure for your business . Selecting the legal entity for your business is one of the most crucial decisions you will make. There are numerous options available, each with its own pros and cons. They type of legal structure you choose can affect your exposure to personal liability, how you pay taxes and how much tax you or your entity will pay. A business attorney can help ensure that you select the most beneficial legal entity to accomplish your goals
• Business transactions . Understanding all of the terms in a contract can be difficult, especially if the other party is using their own lawyer. Legal jargon often makes understanding what is being agreed to nearly impossible. Having a lawyer on your side ensures that negotiations are handled properly and the contract is drafted in a manner that clearly reflects what was agreed to between the parties. Your attorney can also help anticipate any obstacles or potential pitfalls, as well as take measures to reduce your liability and the chance of a dispute going to trial, which can be expensive and time-consuming.
• Employment practices . All businesses should seek the advice of an employment lawyer when hiring or firing employees and/or independent contractors. Employers must ensure that their employment practices comply with both federal and state laws. Classifying an employee or independent contractor incorrectly could result in your business paying government penalties in addition to lawsuits.
• Lease agreements . If your business is going to lease its commercial space, you should understand that this type of lease agreement covers a wide variety of complex matters and can be very complicated. Additionally, a commercial lease is typically for a lengthy period of time, so you want to make sure you understand what your entity is agreeing to before signing the contract. Your business attorney can help ensure your business does not agree to any over-reaching terms that could negatively impact its chance of success.

The above list is only a few examples of how a business lawyer can save you money, protect you from unnecessary liability, and help your entity succeed. Let us use our years of complex business trial and litigation experience to provide you effective, efficient and affordable services in representing you at the bargaining table and in the courtroom. Contact The Swenson Law Firm for the advice and guidance your business needs.

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What are the Remedies for Employment Discrimination?

Wed, 15 Oct 2014 05:00:00 GMT

If the employer intentionally discriminated against the victim based upon the individual’s race, color, national origin, sex, pregnancy, religion, disability or genetic information, the court may compensatory and punitive damages. Compensatory damages are meant to make the victim whole. In other words, the award is to cover all of the victim’s expenses cause by the discrimination, including any emotional harm suffered. Punitive damages are awarded to punish the employer who acted maliciously or recklessly in discriminating against the victim.

According the U.S. Equal Employment Opportunity Commission’s website , the limits on the amount of compensatory and punitive damages an individual can recover vary depending on the size of the employer:

It should be noted in cases of intentional age discrimination or sex-based wage discrimination under the Equal Pay Act, victims may be entitled to liquidated damages, but they cannot recover compensatory or punitive damages. Liquidated damages are awarded in cases where the employer should be punished for malicious or reckless acts of discrimination. To calculate the appropriate amount of liquidated damages to award, the court uses an amount equal to the back pay awarded to the victim.

If you have questions regarding defending discrimination lawsuits or any other employment law matter, contact the employment attorneys at The Swenson Law Firm .

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Do’s & Don’ts for Family Business Succession Planning

Fri, 10 Oct 2014 05:00:00 GMT

If you have a child who has been involved in running the business, you may still want to treat your children who are not involved in the business equally. It typically is a “don’t” to gift equal ownership shares to all of your children. This opens the door to disputes that can only be resolved by litigation. The siblings will likely disagree about salaries, benefits, bonuses and expense reimbursements. Additionally, the children working for the company are entitled to compensation, but their salary also reduces the amount of profits from the business. Complaints of excessive salaries typically occur between the involved and non-involved siblings. Even minor fights can quickly turn into large legal battles.

A “do” for avoiding litigation between your children is the creation of an Employee Stock Ownership Plan (ESOP). An ESOP can help your family avoid conflict as well as provide tax benefits. By using an ESOP, a business owner can place a monetary value on the ownership interests of the non-involved children. The children who are not active in the business never receive an ownership interest in the business, but instead, they receive payments through the ESOP over time.

Creating an ESOP can be a complicated process, but it can provide numerous benefits. It can help keep all of your children happy. Your child that is involved in the business can still maintain control. The children who are not active in the business can still receive payments. The business owner and their family benefit from various tax benefits.

To learn more about creating an ESOP and the tax benefits associated with it, or contact us to schedule an initial consultation. We are located in Sacramento County, and serve clients throughout California.

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The Importance of Protecting Your Business Email

Wed, 08 Oct 2014 05:00:00 GMT

What can you do to protect your business? Consider using email encryption technology. In fact, certain industries such as professionals working in the medical field must use encryption in order to comply with regulatory requirements. However, your business can also protect itself by implementing new email standards as part of your data protection policies.

An updated data protection policy should require employees to implement password protection on any device that accesses work emails. Employees should understand that the use of an employee-owned device for work purposes means that the employer’s electronic use policies apply to that device. In other words, the employee agrees that there are no privacy rights when a device is used for work purposes. There should also be a policy which sets forth the employer’s right to physically or remotely access the employee-owned device.

One of the most effective ways to protect your business emails is to use end-to-end encryption. This requires your messages to be encrypted before they are sent and the recipient to decrypt them by using a special “key.” In other words, a third-party who intercepts the email while in transit will not be able to read it or any attachments without the key.

Encrypting your emails doesn’t have to be difficult. In fact, there are apps that work with almost any type of business email to clients. The recipients don’t have to install a program to read the email. Instead, they simply click on a link to read your encrypted message.

If you have questions regarding encrypting your business emails or protecting your company’s intellectual property, contact us for help .

Understanding what is Owed for Overtime Pay

Fri, 03 Oct 2014 05:00:00 GMT

A non-exempt employee is entitled to overtime pay, while an exempt employee is not. The amount of overtime pay is determined by the state in which the employee works. Federal law establishes the minimum amount of overtime pay which is at least one and a half times the employee’s regular rate of pay after 40 hours of work in a workweek.

If the employee is salaried, federal law requires the employer to calculate the employee’s regular rate of pay by dividing his/her salary by the actual hours worked to arrive at the employee’s hourly rate. The overtime pay rate is one and a half times this regular rate. The applicable state law may be more generous to employees than what is required by federal law. Thus, it is important to confer with a local employment law attorney to confirm you are paying the appropriate rate of overtime pay.

Generally speaking, an employer can require an employee (but not an independent contractor) to work overtime as long as the employee is properly compensated for the overtime hours. An employer must also pay for overtime work, even if it was not approved.

As you can tell, there are a variety of issues that can arise when it comes to overtime pay. If you are in doubt about whether your employees are entitled to receive overtime pay or you have any other employment law matters we can assist you with, contact The Swenson Law Firm for the advice and guidance you need.

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U.S. Supreme Court to Determine Necessary Accommodations for Pregnant Employees

Wed, 01 Oct 2014 05:00:00 GMT

Facts of the Case

Peggy Young was a driver for United Parcel Service, Inc. (UPS). When she became pregnant, she provided her supervisor and UPS’s occupational health manager a written recommendation from her midwife that she not lift over 20 pounds during her pregnancy.

Ms. Young stated that she was willing to do either light duty or her regular job, but her manager told her those accommodations were only for parties protected by the ADA. Young was not allowed to return to work until she was no longer pregnant. She was required to take an extended, unpaid leave of absence, which resulted in her losing her medical coverage. Young returned to work a couple of months after having her baby.

Procedural Background

Young exhausted her remedies at the Equal Employment Opportunity Commission (EEOC) and then she filed a lawsuit. She claimed that UPS violated the PDA and discriminated against her by failing to provide the same accommodations that it provided non-pregnant employees who were similarly limited in their ability to work. The district court ruled in favor of UPS claiming its refusal to provide accommodations to Young was based upon “gender-neutral criteria.” The Fourth Circuit Court of Appeals affirmed the decision.

Issues before the Supreme Court

The primary issue before the U.S. Supreme Court is whether the PDA requires an employer to provide work accommodations to pregnant employees if it provides accommodations to non-pregnant employees who are similarly limited in their ability to work. The EEOC has stated that its position is that employers cannot treat pregnant employees differently from workers who are similar in their ability or inability to work based on the cause of their limitations.

If you have questions regarding this decision or any other employment law matter, contact the employment attorneys at The Swenson Law Firm .

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Should you Document Conversations with Your Employees?

Fri, 26 Sep 2014 05:00:00 GMT

Below are a few factors to consider when telling your managers how to decide which employee conversations should be documented:

You should advise your managers that when they are in doubt about whether or not to document a discussion, they should document it. Better to be safe than sorry. And, if you are truly concerned about an employment law matter, contact us for help . It is always better to spend the time in taking preventative measures than to battle it out in a courtroom down the road.

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Important Tools Your Company Should Use to Protect Intangible Assets

Thu, 25 Sep 2014 05:00:00 GMT

What distinguishes your start-up company from its competitors? It is likely an idea, logo, code, customer list or other similar intangible asset. So, it is important to take measures to protect the unique aspects that set your entity apart from the others. Failure to do so can mean significant legal struggles for you in the future.

When do you start this process? As soon as possible! Below are a few options to consider:

If you are interested in learning more about how to protect your start-up company’s intangible assets, contact us for help .

How Start-Up Companies Can Avoid Common Legal Mistakes

Fri, 19 Sep 2014 05:00:00 GMT

Business Entity

There are a variety of legal structures for entrepreneurs to choose from, each type has its own pros and cons. It is imperative for you to consult a professional to determine which legal structure will be most beneficial for your venture.

Written contracts

Having your agreements in writing helps your new venture plan for the best and the worst. A written contract between the entity’s founders is essential. The agreement should outline the obligations of each founder, the percentage of ownership, and how daily business decisions will be made. It is the most effective way to prevent disputes and avoid disagreements.

Intellectual property

You should be proactive in protecting your intellectual property. This includes safeguarding your company name, key products and logos. Without having the proper trademark, patent and copyrights, you may not have the proper legal recourse if a competitor infringes on your rights. In order to ensure your intangible assets are protected, you should also have all employees sign a non-disclosure agreement.

Employees

There are numerous laws governing the employer-employee relationship. From employment contracts to tax forms, there is a lot of paperwork involved and it is essential that you understand the rules and regulations that apply to your company.

Get help

Many entrepreneurs try to save money by handling everything themselves, but taking this approach often ends up costing them more than hiring a professional. One mistake can be disastrous to the success of your start-up.

If you have questions about establishing a start-up company, let us help. Contact The Swenson Law Firm for the advice and guidance you need.

Can You Fire an Employee for Clicking the “Like” Button?

Thu, 18 Sep 2014 05:00:00 GMT

Facts of the case

Triple Play Sports Bar and Grille (Triple Play) fired its bartender/waitress, Jillian Sanzone, and cook, Vincent Spinella. The employees filed a lawsuit alleging that Triple Play’s termination of them violated Section 8(a)(1) of the National Labor Relations Act. Sanzone and Spinella claimed that Triple Play fired them in retaliation for their protected activities on Facebook.

A former Triple Play employee, Jamie LaFrance, posted the following comment on Facebook:

Maybe someone should do the owners of Triple Play a
favor and buy it from them. They can’t even do the tax
paperwork correctly!!! Now I OWE money…Wtf!!!!

Spinella clicked the “Like” button under the comment. Several others made responses to the comment, including Sanzone’s post that said: “I owe too. Such an asshole.”

Decision

The administrative law judge held that the employees were having a discussion with other workers about the calculation of their tax withholdings that constituted protected concerted activity. When Spinella clicked the “like” button, she was participating in the discussion.

Triple Play argued that the employees’ conduct was not protected concerted activity, focusing on whether their actions were an adoption of LaFrance’s disparaging and defamatory comments, causing them to lose the protection of the Act.

Although the Board recognized that employers have a legitimate interest in preventing the disparagement of their reputation, it must be balanced against the interests of Spinella and Sanzone. The Board, upholding the administrative law judge’s decision, held that the “comments were not ‘so disloyal… as to lose the Act’s protection.”

If you have questions regarding this decision or any other employment law matter, contact the employment attorneys at The Swenson Law Firm .

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Raising Capital for Your Start-Up Business

Wed, 17 Sep 2014 05:00:00 GMT

If you are an entrepreneur and you would like to learn how we can help ensure your start-up company gets off to a successful start, contact us to schedule an initial consultation. We are located in Sacramento County, and serve clients throughout California.

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Cybersecurity & Your Vendors

Fri, 12 Sep 2014 05:00:00 GMT

Data breaches and cybersecurity are a “hot topic” lately. You can be sure that your clients and customers are concerned with whether their private information is being safeguarded. As a result, it is imperative for businesses to take measures to protect the digital data that they collect or maintain.

The spotlight shifted to cybersecurity when the Target data breach occurred and hackers gained access to thousands of customers’ private information. The issue has only gained momentum as other digital breaches were revealed. The New York Times has reported that many businesses are requesting verification from their law firms and other professionals that security measures are being taken to protect confidential information.

If you own or operate a business, you should not only investigate your security measures, but also that of your vendors. Your company should not hesitate to ask a vendor to provide proof of its digital security measures. Having this information on file can assist with reducing your liability and holding the vendor accountable. It may also motivate your vendor into staying up-to-date on the protective measures it uses.

Below are a few areas you should address with your vendors:

If you are concerned with your business’s exposure, you may also want to consider purchasing additional insurance to cover data breaches.

If your business is facing a lawsuit involving allegations of inadequate digital security or data breaches, contact us for help .

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Sexual Harassment Claims

Thu, 11 Sep 2014 05:00:00 GMT

Your employees should be provided a written policy against sexual harassment that is included in the employee handbook. There should be a clear procedure set forth for how an employee should file a complaint of sexual harassment. Employers should ensure that an employee is not required to make the complaint to a supervisor whom they allege committed the harassment.

An employer should immediately begin investigating a claim of sexual harassment. Any delay in looking into the complaint can lead to trouble. The employer should have a neutral party conduct the investigation, such as an employee in human resources or even your employment lawyer. The investigation should include an interview of all parties with information regarding the claim, including the employee making the allegations, the alleged harasser and any witnesses.

While the investigation is occurring, an employer should take steps to limit or eliminate any contact between the alleged victim and the accused. However, an employer should be careful not to take any measures that could be considered as retaliatory. For example, involuntarily transferring either the complainant or the accused to another department could be seen as retaliation by the employer and result in a lawsuit.

Once the employer has completed the investigation, a determination must be made whether the claim of sexual harassment is credible. If it is, the employer must decide what disciplinary action must be taken against the harasser.

If you have questions about establishing complaint and investigation procedures for sexual harassment claims or your business is facing a lawsuit, contact The Swenson Law Firm for the advice and guidance you need.

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What You Need to Know About Overtime Pay

Wed, 10 Sep 2014 05:00:00 GMT

The initial step for an employer is to determine what types of employees are exempt or that do not have a right to receive overtime pay. Below are a few examples:

There are other exemptions that may apply, so it is important to confer with a knowledgeable employment lawyer to ensure that you are applying the proper exemptions and complying with the overtime pay laws.

If you have questions about federal or state laws governing overtime pay or you are facing a lawsuit by an employee alleging you have violated the law, contact the employment attorneys at The Swenson Law Firm .

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California Pregnancy Discrimination

Fri, 05 Sep 2014 05:00:00 GMT

Employers may be surprised to learn that even misguided efforts to protect or assist a pregnant employee can get them into trouble. In fact, acting with good intentions can lead you astray from what is required by applicable statutes. Thus, it is imperative that you are familiar with what is required under the law and when in doubt, consult with a seasoned employer defense attorney .

An employer should avoid making assumptions regarding a pregnant employee. For example, you should not assume that your employee will miss work due to her condition. There are numerous women who work straight through pregnancy without missing work or it impacting her productivity. You should also not assume that your employee will want to cut-back on her hours during her pregnancy or after the baby has arrived. Most employees return to work as originally planned and at the same level as prior to the pregnancy.

What should an employer do? You should handle each employee’s pregnancy as a unique situation. Ignore past experiences with pregnant employees and avoid making decisions on your assumptions or expectations. Remember, it is unlawful for an employer to discriminate in terms of compensation, conditions, or privileges of employment because of pregnancy. Thus, even acts taken in consideration or kindness can be construed as discriminatory.

There are many other issues to consider when dealing with pregnant employees, which we will be discussing in future blogs. Please check back or contact us to schedule an initial consultation. We are located in Sacramento County, and serve clients throughout California.

The post California Pregnancy Discrimination appeared first on The Swenson Law Firm - Providing Guidance and Protection to California Businesses and Employers .

Final Paychecks – Make Sure You Get it Right!

Wed, 03 Sep 2014 05:00:00 GMT

Terminated employees

If an employer fires an employee, all wages that have been earned but unpaid at the time of discharge must be paid immediately upon termination. There can be an exception to this general rule, but you should seek legal advice regarding your business’s situation.

Laid-off employees

In California, an employee that has been laid-off without a specified date of return to employment is treated the same as a terminated employee. In other words, all earned wages are immediately due and payable upon discharge.

Employees who quit

If an employee that does not have an employment contract for a specified term voluntarily quits, the deadline to pay final wages depends on the timing of the resignation. If the employer is given at least 72 hours’ advance notice of the resignation, final wages must be paid on the employee’s final day of work. If the employer is not provided with a minimum of 72 hours prior notice that the employee is quitting, the final paycheck must be issued within 72 hours after notice was given.

In order to ensure that your company does not get into trouble when issuing a final paycheck, your policies and procedures should clearly and thoroughly outline how to handle the payment of final wages. There should be a policy for each scenario listed about and the timeline for issuing final paychecks.

The Swenson Law Firm is here to help. Our attorneys focus on employment matters and business lawsuits. We are located in Sacramento County, and serve clients throughout California. To schedule your initial consultation, call us at 916-333-0833.

The post Final Paychecks – Make Sure You Get it Right! appeared first on The Swenson Law Firm - Providing Guidance and Protection to California Businesses and Employers .

Employers: Does Your Vacation Time Policy Violate the Law?

Fri, 29 Aug 2014 05:00:00 GMT

If you provide vacation benefits to your employees, it is crucial that you comply with the law. For example, a California employer cannot implement a “use it or lose it” policy. Once the vacation pay has been earned by the employee, it cannot be taken away. However, an employer is allowed to set a maximum amount of vacation pay that can accrue. It should be noted that while an employer can cap the total amount of vacation pay allowed, you cannot require the vacation time to be used in the same year it is earned.

Another complication can arise when an employee with accrued vacation pay is terminated. In most circumstances, an employer must pay a terminated employee for accrued vacation time as wages at the employee’s last rate of pay.

How do you avoid disputes from arising? The most important step is to draft the vacation policy in compliance with the law. Have it clearly stated and consider covering these topics:

The above list is only to provide an idea of the areas you must cover in your vacation leave policy. There are numerous other topics that should be addressed and clearly set forth in your employment agreements.

If you have questions about California’s laws governing paid vacation leave or you are facing a lawsuit by an employee alleging your policy violates the law, contact the employment attorneys at The Swenson Law Firm . Call us at 916-333-0833.

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Whistleblower Lawsuit Alleges Fraud Against Wal-Mart

Thu, 28 Aug 2014 05:00:00 GMT

Ms. Laubenstein started working for Conair’s Allegro Division in 2009. This division sold approximately $30 million worth of products to Wal-Mart in 2012. Additionally, Conair acted as Wal-Mart’s advisor, offering marketing and consumer business plans to the mega-retailer.

Even though Wal-Mart’s business was critical to Conair, Laubenstein alleges that Conair would dump its old products to Wal-Mart’s stores. She claims that Conair alter the UPC labels of the out-dated products with a current product’s UPC label. This allowed Conair to get rid of its old inventory while still charging the higher price of better products.

According to Laubenstein, she was fired in 2013 when she confronted her boss about the illegal activity. Laubenstein’s whistleblower lawsuit claims she was wrongfully terminated and seeks to recover her old job or an award for lost pay. She is also seeking an award of damages.

Whistleblower lawsuits are becoming more commonplace. Since the 2010 Dodd-Frank Act was passed providing that a monetary award can be granted to individuals who provide the Securities Exchange Commission with reliable and top-quality information that leads to an enforcement action resulting in more than $1 million in sanctions. As a way to encourage whistle-blowing, the monetary award can be 10% to 30% of the money collected in the SEC’s action, which can be a big chunk of change!

If your business is faced with a situation involving a whistleblower, we can help . Call us at 916-333-0833 as soon as possible to obtain the advice and guidance your business needs.

The post Whistleblower Lawsuit Alleges Fraud Against Wal-Mart appeared first on The Swenson Law Firm - Providing Guidance and Protection to California Businesses and Employers .

Selecting the “Right” Legal Structure for Your Business

Wed, 27 Aug 2014 05:00:00 GMT

The above is a quick summary of a few of the available business structures. There are other factors that should be considered, as well as other entity types that may be better-suited to your needs. If you need assistance selecting a legal entity for your start-up company, contact The Swenson Law Firm to schedule your initial consultation. Call us at 916-333-0833.

The post Selecting the “Right” Legal Structure for Your Business appeared first on The Swenson Law Firm - Providing Guidance and Protection to California Businesses and Employers .

The Importance of a Non-Disclosure Agreement

Thu, 21 Aug 2014 05:00:00 GMT

A tool that your business should use any time an idea is shared with employees, vendors, business partners, or any other third-party, is the non-disclosure agreement. This type of contract, which is also commonly referred to as a confidentiality agreement, allows you to protect your proprietary business information. When a third-party signs a non-disclosure agreement, it contractually binds that party to keep your confidential information protected and to only use it for the agreed-upon purposes stated in the agreement. Similar to other types of contracts, if the party fails to abide by the terms of the agreement, your business is entitled to recover remedies, which typically includes monetary damages and an injunction.

There are a wide variety of types of confidentiality agreements, but some of the key provisions that should be included are:

Simply having a confidentiality agreement in place is a clear indication to the other party that you trust them with something important and that if they violate your trust, there will be significant legal consequences. This alone can go a long way to protecting your business, whether litigation becomes necessary or not.

If you are interested in learning more about non-disclosure agreements or your business is considering filing a lawsuit for breach of a confidentiality agreement, contact The Swenson Law Firm for a consultation. Call us at 916-333-0833.

The post The Importance of a Non-Disclosure Agreement appeared first on The Swenson Law Firm - Providing Guidance and Protection to California Businesses and Employers .

Tips for Preventing Employment Lawsuits

Tue, 19 Aug 2014 05:00:00 GMT

The above list is not exhaustive and every business has its own unique circumstances that must be considered. Additionally, if your business is facing a lawsuit, we can help. The Swenson Law Firm specializes in business lawsuits and strives to help you in an effective, efficient, and affordable manner. We are located in Sacramento County, and serve clients throughout California. To learn more about the issues discussed in this blog or how The Swenson Law Firm can assist you, contact us today for an appointment. Call us at 916-333-0833.

The post Tips for Preventing Employment Lawsuits appeared first on The Swenson Law Firm - Providing Guidance and Protection to California Businesses and Employers .

Adjusters Beware!

Tue, 15 Apr 2014 00:34:00 GMT

In a stunning reversal of a trial court the First Appellate District Court recently ruled that an insurance adjuster employed by an insurer can be sued personally under certain circumstances . Bock v. Hansen (No. A136567, filed 4/2/14) . The case involved fairly egregious acts by the insurance adjuster but all of the alleged acts were done in the course and scope of the the adjuster’s duties in adjusting the claim.

The case came to the court of appeals after the trial court dismissed claims against the adjuster for negligent misrepresentation and intentional infliction of emotional distress on demurrer. The trial court agreed with the defendant that the adjuster was an agent of the insurer and could not be held liable apart from the employer.

On appeal, the court found that the adjuster, like the insurance company, has a “special relationship” with the insured which imposes a duty between the insured and the adjuster.

Its difficult to see how the duty between the insured and the adjuster is separate and independent from the duty between the insurer and the insured. This appears to be a case were extremely bad facts led to the imposition of bad law.

Its interesting to note that following the hearing on appeal, the parties entered into a settlement and informed the court of such. The court however, rejected the stipulation to dismiss the appeal, “in light of the issues presented.”

It difficult to predict how future courts will apply this decision. Its even more difficult to predict how insurers will use this decision to potentially disclaim liability for act of its adjusters.

The post Adjusters Beware! appeared first on The Swenson Law Firm - Providing Guidance and Protection to California Businesses and Employers .

What is a Small Business?

Fri, 11 Apr 2014 16:23:00 GMT

You may be surprised by what qualifies as a small business. It’s not just your mom-and-pop corner m arke t.

Small Busine sses can be any legal form including sole proprietorship, partnership, and corporation. Small businesses have the following characteristics:

The size of a small business is defined either by average number of employees over the past 12 months or average receipt of sales over the past three years depending on the industry. According to The U.S. Small Business Administration some businesses can have up to 500, 1000, and even 1,500 employees or even bring in 33 million dollars in annual receipts and still be considered a small business!

The size standard for a small business differs by industry. For example most building construction businesses can make up to $33.5million dollars in annual receipts. Most specialty contractors, such as roofers, can make up to $14million dollars in annual receipts. Most farmers, such as orange groves, apple orchards, strawberry farmers, and tree nut farmers can make up to $750,000 in annual receipts. Check out the latest Table of Small Business Standards to see where your industry falls.

Why is it important to know your industry’s size standard? Eligibility for SBA’s programs such as financial assistance, Federal government procurement, and Contracting are determined by the size standards. However, in order to qualify for most programs aimed at helping small businesses, your small business needs to be properly structured, properly governed and, in many cases, properly licensed.

As you can see, small business can mean big money. If you haven’t already done so, check with the SBA in your area to find out what benefits are available to your business. Then, sit down with a qualified attorney and accountant to ensure your business is structured and run the right way so you can qualify for the benefits available.

The post What is a Small Business? appeared first on The Swenson Law Firm - Providing Guidance and Protection to California Businesses and Employers .

Do I Need to Register My Copyright?

Fri, 04 Apr 2014 22:27:00 GMT

To understand whether you need to register a copyright or not, you first need to understand what a copyright is, how its created, and how it is enforced.

Many people are surprised to learn that American copyright law has its genesis in the Constitution of the United States. Article I, Section 8 of the Constitution defines the powers granted to congress. One such power is the power “to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” This clause gives congress the power to grant copyrights but expressly requires that copyrights be limited in time.

As of January 1, 1978, US copyrights are governed by the 1976 Copyright Act . Prior to 1978, many states had their own copyright statutes, but the 1976 Copyright Act preempted nearly all state laws that previously governed copyrights. Current copyright law is found in Title 17 of the United States Code.

Under current law, a copyright is defined as follows:

“Copyright protection subsists…in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.”

There is a lot packed into that long sentence. The first thing to note is that copyrights subsist in expressions and not in the ideas actually expressed. That is why a hundred different music pop-stars can write a hundred different songs about one topic (i.e.-broken hearts) and they can still all have a copyright in their expression of that topic.

The second thing to note is that the law requires the expression to be fixed in a tangible medium that can be perceived (seen, heard or felt). This concept gets tricky in today’s computer world where most expressions of ideas are in a digital format.

The last thing to note from the definition is that there is no requirement of registration written into the basic definition of a copyright. That means that a copyright “subsists” in an original expression of an idea, immediately upon being fixed to a tangible medium. If you are taking notes in your own words as you are reading this article, you immediately have a copyright in your notes!

Of course, having a copyright and being able to enforce a copyright are two separate concepts. Under the copyright law, in order to bring a lawsuit if your copyright has been plagiarized, you must first register the copyright with the United State Copyright Office. Registration can be done at anytime, even right before filing a lawsuit, but if you think there is a risk of plagiarism, then the sooner you register, the better. The registration process can take time. Also, there are statutory damages that can only be recovered if a copyright is registered before the violation takes place. Oftentimes, the statutory damages can be worth more than actual damages (harm actually caused by the plagiarism). Most people put off registration and only register their copyright when they realize it has been infringed.

This is all a long way of saying that if you are concerned that someone may steal your expressions, you want to expedite the enforcement of your copyright, and you want to maximize the amount of damages available for plagiarism, then you should absolutely register your copyright.

If you think you might want to register a copyright, or if you have any other copyright questions, check with an attorney familiar with copyright law. Remember: “that nothing is more properly a man’s own than the fruit of his study.” ( From a petition sent to the Continental Congress urging them to pass copyright legislation).

The post Do I Need to Register My Copyright? appeared first on The Swenson Law Firm - Providing Guidance and Protection to California Businesses and Employers .

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