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THE LEGALITIES

The Legal Issues Your Small Business and Non-prot Should Be Aware Of Presented by: Erin McClarty Esq.

Wednesday, September 14, 2011

WHEN LEGAL ISSUES CAN ARISE


Formation General Operation Advertising/ Transactions Labor Trademarks/Intellectual Property Dissolution/ Winding Down
Wednesday, September 14, 2011

CHOOSING A FORPROFIT STRUCTURE


Sole Proprietorship Not a legal entity; one person doing business Unlimited liability for all debts General Partnership Group of two or more who agree to carry on all business and share in all prots/losses. Limited Partnership General partners make managerial decisions and share liability. Limited partners liability limited to their share.
Wednesday, September 14, 2011

CHOOSING A FOR-PROFIT STRUCTURE


Corporation Limited Liability Company Limited Liability Partnership

Wednesday, September 14, 2011

OTHER STRUCTURES CONSIDERED

Franchise

Distributorship- License to sell products Business format- Allow for business under a trademark Manufacturing- given the formula to make a product

Joint Venture

Would enter a joint venture agreement

Subsidiaries

Wednesday, September 14, 2011

CHOOSING A NONPROFIT STRUCTURE


Trusts

Created by a settlor Very rigid in structure


Unincorporated Association

3 or more people come together for a common non-prot purpose Less formality and fewer reporting requirements than a corporation
Wednesday, September 14, 2011

CHOOSING A NONPROFIT STRUCTURE

Limited Liability Company Corporations

Wednesday, September 14, 2011

ADVERTISING: TELEPHONE SOLICITATIONS

Telephone Consumer Protection Act Texas Law Enforcement Telephone Solicitation Act Must le a registration statement and pay fee.

Wednesday, September 14, 2011

ADVERTISING: WEBSITES
Privacy Concerns

Have a privacy policy in place


Internet Regulations

Childrens Online Policy Protection (COPPA)


Jurisdictional Issues

Post Terms of Use on your website


E-commerce
Wednesday, September 14, 2011

ADVERTISING: EMAIL

Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 (CAN-SPAM) Governs commercial mail

Wednesday, September 14, 2011

ADVERTISING: OTHER TEXAS LAWS

Criminal and civl offenses for fraud or misrepresentation Example: Texas Deceptive Trade Practice Act

Wednesday, September 14, 2011

OPERATIONS
Insurance Workers Compensation General Liability Licenses and Permits Does your business require

Wednesday, September 14, 2011

a certain license?

OPERATIONS CONTINUED....
Supply Chain Concerns Getting agreements in place with manufacturers. Want to est. pricing, delivery, warranties, indemnities, termination and governing law. Address products liability. Can affect everyone in the sales chain. Federal Corrupt Practices Act (FCPA) Concerns Huge concern when you have intermediaries or representatives abroad. Respondeat Superior Concerns Protect Intellectual Property
Wednesday, September 14, 2011

COMMERCIAL PROPERTY
Must protect against lawsuits for injury.
Landowners often try to disclaim responsibility for these.

Legal issues can arise with commercial leases


Will want to get assurances that the land is suitable for your purposes, address maintenance, rent increases, term and foreclosure.

Always be thinking about potential zoning or covenant issues

Wednesday, September 14, 2011

LABOR

Managing Employees Create an employment agreement Include a condentiality agreement Beware with Social Media Policies

Wednesday, September 14, 2011

EMPLOYEE V. INDEPENDENT CONTRACTOR


Classication is a hot-button issue
Avoid employee problems and many taxes using independent contractors.

Several Factors to determine who is an IC


Determination of Worker Status (IRS Form SS-8) Texas workforce commission also has a test at http://www.twc.state.tx.us/news/ efte/ics_contract_labor.html

ICs make you more susceptible to IRS audits


Wednesday, September 14, 2011

LABOR LAWS
Fair Labor Standards Act (FLSA) Department of Labor has a handbook for guidance: www.dol.gov/asp/programs/handbook/main.htm Family Medical Leave Act (FMLA) Texas Labor Code

Wednesday, September 14, 2011

NON-PROFIT ISSUES
Charitable Solicitation Laws
May require registration in each state you plan to solicit in Fill out Uniform Statement Kit at www.multistateling.org

Losing tax-exemption status Unrelated Business Income Activities


1. Trade or business; 2. Regularly carried on; 3. Not substantially related to furthering the exempt purpose. IRS Publication 557 Tax-Exempt Status for Your Organization gives guidance
Wednesday, September 14, 2011

HOW CAN YOU PROTECT YOURSELF


Educate yourself on all the applicable laws Take how-to books with a grain of salt Get together your team Bring in knowledgeable people. You get what you pay for. Utilize development centers, groups and associations Look for Meet-ups and Networking Groups Attend continuing education
Wednesday, September 14, 2011

WHY DO I NEED AN ATTORNEY?


Guidance and Counsel
Sound-board

Cant know every law


Draft or review contracts

Pre-emptive action, mitigation and judgement calls Advocate and representative in case of business transactions
mediation, mergers, negotiations
Wednesday, September 14, 2011

BUT I CANT AFFORD ONE..

Be Creative Some attorneys allow you to buy credits Do package deals Hire counsel on a contract basis

Wednesday, September 14, 2011

ATTORNEY RESOURCES
Houston Volunteer Lawyers Program S.C.O.R.E Houston Lawyers Referral Service Texas Accountants and Lawyers for the Arts Texas C-bar

Wednesday, September 14, 2011

CONTACT

Erin McClarty Esq. erinemcclarty@gmail.com www.notationsonnonprot.com

Wednesday, September 14, 2011

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