Friday, 14 December 2018

Can You Be Sued After Your Business Closes?

Can You Be Sued After Your Business Closes

When you closed your business and paid your creditors, you thought, “that’s the end of that,” and moved on to other endeavors. Well, maybe not. If you have products out there that can cause injuries, among other potential liabilities, you could be involved in a lawsuit long after you have closed your doors.

It’s always a good idea to work with a lawyer when closing down your business (although sole proprietorships are much easier to shutter), which can help you avoid post-dissolution lawsuits in the first place. Here are some things you may want to consider about post-dissolution lawsuits:

You will probably not be able to handle a lawsuit without the assistance of an attorney. When you receive a Complaint or another type of legal document that indicates that you are being sued, do not contact the plaintiff or the plaintiff’s attorney — contact your own attorney. If an injured person or the person’s attorney contacts you directly, you should listen and takes notes. Do not admit fault. Do not explain changes that were made to the product. Do not make promises. Do not detail the current status of your business. Your best strategy will be to take the person’s name, contact information, and the nature of the claim and inform them that your attorney will contact them.

Exactly follow the dissolution notification procedures set forth in your state statutes. In many states, if you notify creditors and the public, you will be able to limit the amount of time in which a person who is later injured may bring suit. If you do not follow notification statutes, the time in which a person can bring a suit against you will last much longer. For example, your state may have a law that says, as long as you follow notification procedures, you can only be sued for three years following your dissolution.

After your business has closed, keep your corporate records in order. Most states have laws that deal with disposing of claims against a dissolving or dissolved business. In most cases, even after the business is dissolved, it will continue to exist for the purposes of settling claims.

Determine the statutory time limitations for bringing a suit against your business.

If you were involved in a business that manufactured products that may cause future injuries, consider reserving a portion of your liquidation distribution for the time period during which a person can bring suit. If you were incorporated, the claimant will only be able to recover what you received in distributions. This is also an issue that you might want to consider when purchasing commercial liability insurance.

If you followed the notification statutes and the time periods for bringing suit against you have expired, your attorney should be able to get the suit dismissed.

Your state may have a statute that allows you to reject the claim and force the claimant to take further action. In this case, if within a certain time period the claimant doesn’t take further action after his or her claims is rejected, the claim will not be allowed and your attorney should be able to get the suit dismissed.

If you have sold your operating assets to another business or individual before you dissolved, they may be liable to the injured party instead of you.

Your commercial liability insurance might cover the costs associated with the lawsuit. Check your policy and contact your agent.

If there is no relief available, and it looks like you are going to lose your distribution in a lawsuit, determine whether it is really worthwhile to battle it out in court. In many instances of clear corporate liability, a settlement will be less costly. Taking a case to court will dramatically increase legal fees and will probably require your personal involvement.

Business Lawyer Free Consultation

If you are here, you probably have a business law issue you need help with. If you need legal help call Ascent Law for your free business law consultation (801) 676-5506. We want to help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506
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Cyber Attack Law

Cyber Attack Law

The term cyber attack refers to any number of ways a criminal may attempt to damage or access sensitive information from a computer or networked device. The frequency and sophistication of these attacks continue to increase dramatically, while law enforcement and computer security companies frantically try to keep up. Entrepreneurs must wear many hats to be successful and can’t be expected to have technological expertise. However, it’s important for all business owners to become familiar with the most common types of cyber attacks.

How to Deal with Viruses

Viruses are perhaps the most familiar type of computer-related offense. They are programs or pieces of software code that are loaded onto your computer (or smartphone) without your knowledge, often by enticing the user to open an email attachment. Viruses can compromise a computer or an entire business network in a number of ways, including the deletion or corruption of files. New viruses hit the Internet every day, according to the Better Business Bureau.

  • Defenses – Antivirus software is widely available and should be regularly updated; train employees about the common ways computer viruses are spread; infected computers should be taken offline immediately.

What Should You Do with Spyware

Your computer may be infected with spyware without your knowledge. This type of malware (software used for nefarious purposes) secretly collects information from a computer, which can include credit card numbers and Social Security numbers, typically recording the keystrokes of the user. Spyware sometimes is used by marketers and spammers, covertly installed along with a downloaded application, but also can be used for credit card fraud and identity theft.

  • Defenses – Search online for anti-spyware software, some of which is free of charge; some signs that your computer may be infected with spyware include frequent pop-up ads, sluggishness and changed settings.

What about Phishing?

Chances are, you have received an official-looking email attempting to trick you into verifying your personal information at least once in the past few years. This is called “phishing,” and can also take the form of a fake web site attempting to take advantage of user mistypes (for example, typing “paypak.com” instead of “paypal.com” and being taken to a site that looks like paypal.com but isn’t). In a business setting, a phishing attack may try to get an employee to give up the password to a customer database.

  • Defenses – A good spam filter may help block a majority of phishing attempts, but a well-informed workforce may be the best defense; also, check for the secure connection icon (a closed padlock) in the browser when transmitting sensitive data.

What is Pharming?

Similar to phishing, pharming redirects a web site request to a fraudulent site that closely resembles the intended one. The criminal hacks into the server to embed the malware so that users who type in a given address are automatically redirected to the fake site, which then collects information given by the user.

  • Defenses – Like phishing, an informed workforce is probably the best prevention to workplace pharming attacks; if a web site redirects to another address without providing an indication to the user, it could be a pharming attempt. Use an intrusion prevention systems and network scanners to secure your company’s web server.

Keyloggers, Bots, and Trojans are Issues as Well

These are applications that appear useful or at least benign, sometimes taking the form of screen savers that entice the user to download them. But they carry viruses or other malware that can be destructive to computer files and may compromise data security. The user is often unaware they even exist but the implanted malware can send sensitive personal information to a third party.

  • Defenses – Some companies have strict policies pertaining to the types of files employees may or may not download and install; regular virus and malware scans can help detect such attacks after the fact.

 

Cyber Attack Lawyer Free Consultation

If you’ve been a victim of a cyber attack and need legal help, then call Ascent Law for your free consultation (801) 676-5506. We want to help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506
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Thursday, 13 December 2018

Finance and Banking Law

Finance and Banking Law

Opening up bank accounts, getting lines of credit (if needed), and managing your finances are crucial aspects to running a small business. Sure, you’d rather devote all your time and energy to actually running your business and following your passion — but without adequate resources and smart cash-flow management, it won’t last very long. Whether you’re about to start your first business or you’re a serial entrepreneur looking for new angles, the following information will help you find the right finance and banking resources for your business.

Financing Your Business

There are many ways to finance your business and no one method is right for everyone. Most businesses start out small, perhaps with loans from friends and family and a simple home office, while others need more substantial resources just to get off the ground (whether it’s a bank loan or equity investments). Your business plan will help you determine what you’ll need to reach your goals. The following resources correspond to the most common forms of business financing:

Business Loans

  • Business Loan Application Checklist – Checklist of which information and documents you may want to include in your business loan application, such as the financial history of your business and projections of future earnings.
  • Real-Life Loan Agreements – Collection of loan agreements with well-known corporate entities to help you get familiar with such agreements.
  • Business Loan Application Checklist (Small Business Administration) – SBA’s guide on how to apply for a business loan, covering such important considerations as the application form, your business plan, credit report, income tax returns, collateral, and more.
  • SBA Loan Application Checklist (SBA) – A helpful checklist of the various elements and considerations pertaining to a 7(a) loan, offered indirectly through (and guaranteed by) the agency.





Business Grants

  • Small Business Grants – Overview of the various grants — which do not need to repaid — available to small businesses, including state programs to retrain workers and programs meant to reinvigorate depressed regions.
  • Research Grants for Small Businesses (SBA) – Explanation of research and development grants available to certain small businesses, with links to various government agencies through which the grants are offered.
  • Search Federal Grants (Grants.gov) – Searchable database of all federal grants available to U.S. businesses, with various filters and search options to help you hone in on those that may be a good fit.

Equity Deals and Venture Capital

  • Debt vs. Equity: Advantages and Disadvantages – A guide to help you make an informed decision as to whether debt (loans) or equity is right for your small business.
  • What is Equity Crowdfunding? – The basics of equity crowdfunding, in which ordinary, non-wealthy individuals have the opportunity to invest just a few hundred dollars in your business in exchange for a small equity stake.
  • Venture Capital (SBA) – SBA’s overview of venture capital, angel investors (individuals who invest smaller sums of money as limited partners), and equity capital in general.





Other Business Finance and Banking Ideas

  • Business Banking and Securities Forms – A collection of checklists, sample forms, real-life financing agreements, and other resources pertaining to business banking and financing
  • Sample Business Balance Sheet – Brief explanation of the layout and purpose of a balance sheet, in addition to a sample balance sheet that your business can use as a template.
  • Is Your Business Fiscally Fit? (SBA) – SBA’s guide to determining whether your business is properly funded and healthy from a fiscal perspective, with suggestions and how-to guides to help improve your financials.

Banking and Finance Lawyer Free Consultation

If you are here, you probably have a business law issue you need help with, call Ascent Law for your free business law consultation (801) 676-5506. We want to help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506
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Effects of Divorce on Children

Effects of Divorce on Children

I know that divorce is emotionally devastating for all parties involved because I’m a divorce lawyer. But things can be especially children. However, you can minimize the pain divorce causes your family by doing the following:

  • Cooperate for the sake of your children. Your partnership as a married couple may have ended, but your partnership as parents who love your children must remain. Show your children they are your top priority by putting past resentments aside and cooperating with your ex-spouse.
  • Never let money interfere with parenting. Never take your frustration over financial issues with your ex-spouse out on your children.
  • Never badmouth your ex-spouse in front of your children. Your issues with your ex-spouse should be yours alone. You should let your children learn to love each parent equally. If you badmouth your ex-spouse, you force your children to choose sides and this can make them feel uncomfortable and conflicted.





  • Respect the privacy of your ex-spouse. You should never use your children as spies to obtain information on what your ex-spouse is doing.
  • Seek family counseling. You should look into divorce and family counseling programs. Sometimes children appear to fine when really they are deeply upset and need help opening up.
  • Visitation from the noncustodial parent. Children should always receive constant love and support from both parents. If you are the noncustodial parent, work with your ex-spouse to create a visitation schedule that allows you to spend time with your children.

A knowledgeable attorney like one at Ascent Law can guide you throughout the divorce process and protect your best interests.

Is There Common Law Divorce in Utah?

Common law marriage is the concept of a couple living together for a certain amount of time and thereby automatically gaining status as a married couple. While some states recognize common law marriages, Utah is not one of them. In Utah, a couple must take measures to legally wed in a civil proceeding or church ceremony in order to achieve married status.

As couples may not simply live together for a period of time and attain a marriage in Utah, a married couple also may not simply live apart for a period of time in order to attain a divorce. While some states do allow this, in Utah a couple must first enter into a valid separation agreement. In fact, for a long time, divorcing after one year of legal separation was the only path Utah couples could take to achieve a no-fault divorce. Since 2010, however, the state has granted divorces on no-fault grounds. Today, the following grounds for divorce in Utah are accepted:

  • Irretrievable breakdown — This is the relatively new no-fault basis for divorce. The couple must allege that for at least six months prior to filing, their marriage has broken down irretrievably. They do not have to live apart for that time period.
  • Cruel or inhuman treatment — A fault-based ground that alleges physical, emotional or verbal abuse by one spouse.
  • Abandonment — A fault-based ground alleging abandonment for at least one year





  • Incarceration — A fault-based ground that is valid if one spouse is in jail or prison for three or more consecutive years
  • Adultery — A fault-based ground alleging infidelity by one spouse. Adultery can be difficult to prove in court, and requires testimony from a third party or evidence to support the allegation.
  • Divorce following legal separation — While this is closest to the concept of common law divorce, couples in Long Island and throughout Utah must first obtain a legal separation agreement.

Divorce Attorney Free Consultation

If you have a question about divorce law or if you need to start or defend against a divorce case in Utah call Ascent Law at (801) 676-5506. We will help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506
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Wednesday, 12 December 2018

Electronic Signatures on Contracts

Electronic Signatures on Contracts

Given the rapid development of digital technology, it was inevitable that eventually contracts could be completed between two parties without ever meeting or physically signing a single piece of paper. Thanks to a federal law called the Electronic Signatures in Global and National Commerce Act (ESIGN), electronic signatures are just as valid and enforceable as those signed by the contracting party’s own hand. It’s important that business owners understand the main points of this law, since more and more legal documents are moving into the digital space.

ESIGN

ESIGN changed the status of all electronic signatures and made them as binding as their counterparts on paper. This was great news for companies that were beginning to realize the potential of online business. Companies dealing with financial, insurance and other services were greatly benefited by this law. The electronic signature law also helped those who needed a faster means of forming business to business contracts, such as supplies and services contracts. Technically, the law states that electronic signatures are valid as long as the two parties involved agree to that method of signing.

Electronic Signatures and Electronic Contracts

An electronic contract is a document that is created, transmitted and signed, all in electronic form. This means there is no waste of paper or postage fees. In addition, “clickthrough” contracts — typically found in online user agreements — are another form of an electronic contract. The user must click “I Agree” at the end of the user agreement before the online service or software becomes usable.

There are a number of ways to sign an electronic signature, such as one’s initials or full name. Other methods include clicking an “I Agree” button, or even scanning and pasting in an image of a person’s real signature.

Cryptography and Electronic Signatures

Cryptography provides a means of scrambling information from the sender, allowing the receiver to unscramble it on the other end. One of the more popular standards for online cryptography is the Public Key Infrastructure (PKI). PKI uses an algorithm to scramble and encrypt electronic contracts and other documents so that they are only viewable and accessible to authorized users.

In addition, the Worldwide Web Consortium, the organization that sets standards used throughout the Internet, has developed guidelines for XML based digital signatures.

Paper Contracts Are Still Available

While ESIGN gives businesses and the consumers the power to create, sign, and complete contacts all through electronic documents, the same laws give consumers the right to opt for paper contracts as well. ESIGN provides that, prior to getting a consumer’s consent for using electronic contracts and signatures, a business must notify the consumer whether or not there are paper copies that can be used as an alternative.

The law also mandates that businesses inform consumers that, even if they give consent to use electronic documents, they can later change their mind and switch to paper documents. These notices must give the consumer information relating to any fees or penalties that will apply (since paper and postage costs money). Lastly, the notice must indicate the scope (how many documents the consent will apply to) of the consumer’s consent to use electronic documents.

Although electronic contracts and signatures may be great for business, they may harm low-tech consumers. These people may be forced to pay higher fees for continuing to conduct business on paper.

When is a Paper Contract Required?

There are still contracts that are required to be on paper in order to protect consumers. These documents include:

  • Documents dealing with adoption, divorce, and other family law matters
  • Wills, will codicils, testamentary trusts
  • Notices of utility termination or cancellation
  • Notices of foreclosure, eviction, repossession or default
  • Court orders, notices and other court documents
  • Notices of termination of health or life insurance benefits
  • Notices of product recalls due to health or safety reasons, and
  • Documents that are required by law to travel with hazardous materials

UETA

The Uniform Electronic Transactions Act (UETA), adopted by most states, establishes the validity of electronic signatures in contracts much in the same way that ESIGN does. The UETA works like the ESIGN, but on an in-state level, while the ESIGN works on an interstate level.

 

Contract Lawyer Free Consultation

If you are here, you probably have a contract matter you need help with. If you do, call Ascent Law for your free consultation (801) 676-5506. We want to help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506
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Buying a Business

Buying a Business

Prospective entrepreneurs have several options other than starting a business from scratch, including buying an existing business or franchise. But before you write a check and get started, it’s important to do your research and understand exactly what you’re getting into. This section covers all aspects of buying a business, such as purchasing a franchise; buying an existing business; understanding valuation and accounting terminology; what to expect when buying a business; and more.

Buying a Franchise

If you are considering buying a franchise you may want to consider the cost. Start-up costs and royalty fees can put a serious damper on a franchisee’s take-home pay. For example, if you were opening up a popular fast food franchise, the franchisee must not only pay money toward the location, he or she must also pony up a large franchise fee for the right to operate the business for a period of years. After that time is up, assuming the company agrees to renew the contract, another franchise fee can be charged. The total monetary layout to open a fast food franchise can range anywhere from $500,000 to $1.6 million depending on the popularity of the franchise.

Make Sure You Have Liquidity

The amount of cash a company has on hand or can generate quickly reveals how healthy the company is financially. High levels of available cash indicate that the business can pay off debt easily when due dates occur. The types of assets a company has and the marketability of those assets are where a discussion of financial liquidity begins.

Findings a Business For Sale

To many, online business marketplaces would seem the obvious place to start when searching for an online business for sale. The internet is the largest business for sale marketplace and has seen rapid growth in recent years. Online business marketplaces are attractive as they enable buyers to look across the industry at a range of available listings, helping them to identify potential investment opportunities. Buyers are able to request additional information on listings, which automatically alerts the seller or designated broker (if represented). Most established online business brokers have a presence on such platforms, using them as an additional outreach channel.

What is Due Diligence?

When you are considering buying a business, conducting due diligence ensures you have access to important information about the business you’re buying. It’s the best way for you to assess the value of a business and the risks associated with buying it. You usually conduct due diligence after you and the seller have agreed in principle to a deal, but before signing a binding contract. The information you collect during due diligence is highly sensitive and confidential. The seller might want you to sign a non-disclosure agreement before you access this information.

Hire a Business Attorney

When you’re faced with a business issue that is complex, time consuming, or has liability issues, you should consider hiring a knowledgeable business attorney. If you are a startup or small business owner, you will want to look for a lawyer or legal team that identifies with the startup and small business culture. For example, a lawyer who runs his own small legal practice—a solo practitioner–will likely have the legal expertise you need, as well as an understanding of your plight as a small business owner.

Once you have selected the perfect lawyer for your small business, build a comfortable working relationship with him or her over time. You will want to reach out to your lawyer for counsel and guidance on substantive and non-substantive matters alike.

Business Lawyer Free Consultation

When you are looking to buy a business, call Ascent Law for your free consultation (801) 676-5506. We want to help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506
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Tuesday, 11 December 2018

What is Specific Performance?

What is Specific Performance

There are a few different legal remedies a party may consider when another party has allegedly breached its contractual obligation, including lawsuits and arbitration. However, sometimes a monetary remedy doesn’t quite make the plaintiff whole, which is the goal of any civil remedy.

Courts can order defendants in contract disputes to actually perform the contractual duties as originally agreed if it is determined that money alone cannot resolve the issue. This is called specific performance.

Specific Performance is a Legal Remedy Under the Law

Specific performance is a specialized remedy used by courts when no other remedy (such as money) will adequately compensate the other party. If a legal remedy will put the injured party in the position he or she would have enjoyed had the contract been fully performed, then the court will use that option instead. The most common reason courts grant specific performance is that the subject of the contract is unique, when it’s not merely a matter of money or where the true amount of damages is unclear. When a contract is for the sale of a unique property, for instance, mere money damages may not remedy the purchaser’s situation.

For example, Fred offers to buy Julie’s house and Julie accepts this, but later decides to keep the property. Real estate is considered to be unique. Since there is no other piece of property or house exactly like Juile’s, Fred may be entitled to specific performance on the contract. Julie would be compelled or forced to go through with the sale.

Specific Performance and Replevin

The term replevin — commonly referred to as “claim and delivery” — refers to a legal action in which actual property (not its monetary value) must be transferred to the plaintiff in a dispute. It is similar to specific performance and often used interchangeably in statutes. For instance, the UCC states that a buyer “has a right of replevin for goods identified to the contract if after reasonable effort he is unable to effect cover for such goods or the circumstances reasonably indicate that such effort will be unavailing…”

In other words, a court may order specific performance in the form of replevin (transfer of actual goods) as a remedy in a contractual dispute when cash damages are not sufficient.

When is Specific Performance Ordered?

Courts will enforce specific performance only if the underlying contract was fair and equitable. Other commodities that courts have found to support specific performance include works of art, custom-made products, and goods in short supply. Nearly all states have adopted the Uniform Commercial Code (UCC), which addresses specific performance. For example, Utah law states that specific performance may be compelled if:

  1. Specific performance would otherwise be an appropriate remedy;  and
  2. The agreed counter performance has been substantially performed or its concurrent or future performance is assured or, if the court deems necessary, can be secured to the satisfaction of the court.

As you can see, an order for specific performance is largely left up to the discretion of the courts. The second requirement is meant to ensure that the other party (the plaintiff) also has performed or will perform its obligations as specified by the contract.

Lawyer Free Consultation

If you need to get specific performance or replevin in your lawsuit, call Ascent Law for your free consultation (801) 676-5506. We want to help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506
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