​In light of the current pandemic, many Americans are becoming aware of the importance of creating or updating their estate planning documents. With the extension of some states’ stay in place orders, it may be tempting to create your own documents all on your own. Whether you are considering writing your own will or using an online “do it yourself” (DIY) document creator, there are many reasons why this is one project you shouldn’t undertake without the help of a professional.
 
 
What is a DIY estate plan?
A DIY estate plan is something that you “do yourself” without the advice of an estate planning attorney. Someone who DIYs their own legal documents could be:

1. Handwriting a “will” themselves;
2. Downloading a “fill in the blank” document that they got on the internet; or
3. Using an online document generator that asks pre-set questions.

 
Below are five common mistakes associated with DIY estate plans.

​Uncertainty and unrest have defined 2020. From COVID-19 and record-breaking unemployment to ideological, political, and societal conflicts, business owners have faced significant challenges to their survival and success. Regardless of their current political views or health and financial statuses, business leaders agree that they must navigate this time with care. The decisions that business owners make during difficult periods could have long-lasting effects on the business's future success. As a business owner, here are a few things to keep in mind as you navigate these unprecedented challenges.

​As small business owners grapple with the economic realities of nationwide stay-home orders and social distancing mandates, legislatures have been updating laws and developing new programs to keep the economy afloat. The latest and most groundbreaking is the Coronavirus Aid, Relief, and Economic Security (CARES) Act, a $2.2 trillion stimulus package aimed at supporting individuals, businesses, and governments now and beyond this pandemic. The federal government has earmarked $377 million to help small businesses avoid failure and encourage them to retain their workforces. Here are the most important things for business owners to know about the CARES Act:

• Small Business Administration (SBA) Economic Injury Disaster Loans and Emergency Economic Injury Grants. Small business owners will be able to apply for low-interest federal disaster loans to maintain cash flow for payroll, utilities, rent, and other fixed debts.[1] Additionally, small businesses may be eligible for up to $10,000 in grants, in the form of a loan advance, if they can show economic injury caused by the COVID-19 pandemic. An applicant may be eligible for the advance even if the applicant is denied the federal loan. Applicants who are approved for the loan advance will receive funds within three days of applying. 

​In a matter of weeks, the COVID-19 pandemic has impacted the world and forced communities to reevaluate everything. Despite the unpredictability that has accompanied this global crisis, it is not too late to implement changes to protect you, your employees, and your business. Here are some tips and strategies to help you navigate these challenges and the ones to come.

• Participate In and Promote Social Distancing Practices. The Centers for Disease Control and Prevention has recommended that employers “explore establish[ing] policies and practices, such as flexible worksites (e.g., telecommuting) and flexible work hours (e.g., staggered shifts), to increase the physical distance among employees and between employees and others.”[1] At the time of this writing, the President has discouraged gatherings of more than ten individuals. As an employer, creating a safe and healthy environment is critical for your company’s success. Thus, employers must work toward complying with the guidance provided by local and federal leaders. Be sure to maintain the cleanliness and sanitization of any facilities where your business operates. Failure to maintain safe environments could result in loss of the goodwill you have already established within your community.

 

Are you considering leasing office or retail space for your small business? The terms of your lease can have a huge impact on whether your business succeeds or fails. There are several important provisions that should be considered before you sign on the dotted line.

Leases of a certain duration (usually one to three years, depending upon the state) are generally required to be in writing and signed by the party against which they are being enforced. In reality, it is advisable for all commercial leases to be in writing, regardless of their duration. They should clearly spell out certain terms that are of crucial importance, including the following:
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(1) The leased space. Your lease should state exactly what space you are renting, including common areas such as hallways, restrooms, stairs, and elevators. The square footage of the space and how it was measured should be specified.

​Small businesses make a huge contribution to the U.S. economy. Nevertheless, starting a new business is risky. Lenders view loans to small businesses, particularly start-ups, as among the riskiest they make, particularly when there is little or no credit history or business revenue on which to base their decision. In an effort to lessen their risk, lenders frequently require small business owners to sign personal guarantees as a condition for giving the loan.  A personal guarantee is a legal commitment by a business owner to repay a business debt if the business is unable to repay it. These guarantees put the personal assets of small business owners on the line—savings accounts, cars, homes, and retirement funds. However, there are several steps you can take to minimize your liability.

​If you are starting a new business, it is important not to overlook federal, state, and local business license and permit requirements. Almost every business, even one that is home-based, is required to obtain some form of license or permit in order to operate legally. Failure to do so can lead to fines, and in some cases, the closure of your business.
Why Are They Necessary?
The government has two main purposes for requiring licenses and permits: keeping track of a business’s revenue for taxation purposes and safeguarding the public.
For example, in the context of taxation, a state sales tax permit allows the state to oversee the collection, reporting, and payment of sales taxes: A business that sells goods or services collects the sales tax on behalf of the state and is responsible for remitting it to the state.
Other licenses and permits are aimed at protecting the public, either physically or economically. For example, occupations that could impact a person’s health, such as doctors, dentists, hair stylists and barbers, generally require professional licenses establishing that these practitioners have a certain level of expertise in their field.
What Is Required?
The licenses or permits your business must obtain will vary based on the type of business, its location, and the applicable government rules. Although it is important to check with a business planning attorney to verify which licenses and permits are needed for your particular business, the following are among the most common.

The State Liquor Enforcement Division (LED) is looking for some basic things.
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• LICENSES ARE NOT UP TO DATE. LED is going to look to see that all the liquor, sales tax, and retail food establishment licenses are current and displayed in a conspicuous location. Make sure you renew all of your licenses before they expire. Also, make sure all your current licenses are displayed in a location that is in view of the public and not covered or obscured by anything. Don’t put your licenses in an office, behind a door, or in a drawer.
• NO MINOR WARNING SIGN DISPLAYED. LED will check for a minor warning sign and make sure it is displayed in a location, visible to the public, with unobstructed views. CRA can provide members with this sign free of charge.
• INVOICES AND RECEIPTS FOR LIQUOR PURCHASES CANNOT BE LOCATED OR ARE DISORGANIZED. LED will ask to see invoices and receipts for all liquor purchases made by the licensed establishment. Licensees must have the current and previous three years' invoices and receipts for all liquor purchases on-site. The law implies the invoices must be the original, but LED will allow you to provide copies or scans. Local enforcement may require you to provide the originals – be sure to check with your local licensing authority. It is recommended that you file your invoices and receipts by distributor or retail purchase in separate files, by year. Disorganized records can be a red-flag for inspectors.
• REGISTERED MANAGER IS NOT UP TO DATE. LED will check to see if the manager of the establishment(or the person performing the tasks of a manager) is the person registered on the liquor license. The establishment’s manager is required to be named on the license through the local and state licensing authority. If the manager of an establishment changes, the licensee has 10 days to notify the local licensing authority and 30 days to notify the LED.
• FOOD IS NOT BEING SERVED PER YOUR LICENSE REQUIREMENTS. LED is going to ensure that the appropriate food is available for purchase depending on the type of license the establishment has. Hotel and restaurant licensees must serve meals between the hours of 8am and 8pm and at least meals or light snacks and sandwiches served after 8pm while the establishment is open and serving drinks. Tavern licensees must serve light snacks or sandwiches whenever the establishment is open and serving drinks.

​If you’re thinking of starting a business (or already have a business in the works), make sure that the name you use is not already taken.  Original names are essential for three reasons:  marketing power, clarity, and trademark infringement avoidance.  For example, if you’ve decided to open a coffee shop, it’s fairly easy to determine that the name “Starbucks” is not an option.  But, what about “Smith’s?”  And what happens if the “Smith’s” trademark is an auto insurance company in your town? 
 
What’s Really in a Name When it Comes to Business Trademarks?
 
Before attempting to trademark your business’s name, find out if the name is available on the U.S. Patent and Trademark Office’s website.  TESS, the Trademark Electronic Search System database, will indicate whether someone else has already claimed the name or symbol you want to use. 
 

• While U.S. trademark protection is granted to the first company to use it in its operational geographic area (regardless of registration), a company that grabs the trademark first will generally have a stronger case in court.

 

• In some situations, the similarities between names or symbols may be negligible.  That’s where an experienced business attorney with intellectual property experience can help. 

 
Often, there’s generally a way to accommodate both companies – especially when it comes to businesses with similar names, but dissimilar products (the “Smith’s” example above); those whose geographical locations may not conflict; and those whose names are too generic (for example, “The Clothing Store”).
 
Domain Extensions as Trademarks
 
In today’s marketplace, many businesses have both a physical location and an online presence.  The question then becomes whether to trademark the company name (for example, Amazon), the URL (www.amazon.com), or both.  It’s generally recommended that companies with an internet presence not register their web extensions (such as .com, .net, etc.) with their name unless planning to register the mark both with and without the web extension.  The reason is that other businesses registering the same name can do so by just adding a different (non-registered) extension and cause a great deal of confusion for customers.
 
A prime example is Craigslist.  The multi-purposed classified ad site is technically a “.org” site, but those who searched for craiglist.com or craiglist.net were often led astray.  The company now has trademarks for all, so typing in the latter extensions now brings you to the main .org site.
 
If you have questions about business trademarks, call our office and we’ll guide you through trademark protections so your business and your efforts are protected.

​You and several friends start a new business and decide to operate it as a limited liability company (LLC). Now that you’ve completed the  first step—choosing a business entity—it is now important to prepare an operating agreement. The operating agreement is a contract which governs the operations of the LLC and sets forth the arrangements made among the members, including their rights and responsibilities upon the withdrawal of a member.  Although departure from the business may be the last thing on anyone’s mind, it is important to plan ahead. A non-competition, or non-compete, clause can help protect the company from harm inflicted if a former member decides to form a competing business.
What Is a Non-Competition Clause?
A non-compete clause protects business assets like goodwill, confidential information, and trade secrets by preventing the former member from using the knowledge gained while participating as a member of the LLC to compete against the LLC.
If the operating agreement contains a non-compete provision, a former member can be precluded from engaging in a similar type of business directly or indirectly in competition with the LLC. If the operating agreement does not contain such a clause, the former member is free to compete with the LLC.
In addition, the non-compete clause may prevent the member from soliciting the LLC’s clients or customers for business. Usually, such provisions take effect after the relationship has ended, although they sometimes may preclude members from competing with the LLC during their membership in the LLC.
Because non-competition provisions place restrictions on the former member’s ability to secure future employment, they will only be enforced if they are not unduly burdensome. Consequently, they must only restrict competition for a reasonable period of time and in a reasonable geographic area, Additionally, the scope of the services the former member may provide in a competing business must not be unduly restricted.

• Note that the standards for the enforceability of non-compete clauses vary from state to state, so it is important to work with an experienced business planning attorney to ensure your non-compete clause and LLC operating agreement are enforceable. For example, in some states, the LLC statute imposes a duty not to compete on managers and members that must be explicitly waived in the operating agreement to avoid applicability.

Does My LLC Really Need One?
Members of LLCs often have intimate knowledge of the business, such as its trade secrets, confidential information, and customer lists. If  members are permitted to compete with the business immediately after they withdraw, and in the same geographical location, the financial success of the original business could be jeopardized.
Although many LLCs are formed by small groups of friends or family members who get along well and trust each other in the beginning, you cannot ignore the possibility of a dispute arising in the future. Circumstances can change, and it is important to try to prevent disagreements from undermining the success of your business. Including a non-compete clause in your operating agreement will help ensure your business is protected against a preventable harm.
We Are Here to Help
If you are interested in protecting your new or existing LLC, we can help you draft or amend your operating agreement to include key provisions such as a non-compete clause, as well as others specifically tailored to meet your business’s needs. Please give us a call today to set up a consultation.