The office address is 1106 Meridian St, Suite 251, Anderson, IN 46016 (follow that link for a map.)
Telephone: 765-641-7906
Fax: 765-374-3811
The best time to reach me by telephone is (usually) after 4:00 pm.
My traditional web page is here.
You may also want to take a look at my Yahoo Local listing here.
Want to know more? I have more information on web page at page for more background. Also I have a Naymz page here:
If you do want to hire, please use my client questionnaire.
Ok, I admit I am trumpeting my own horn but The Massachusetts Divorce and Family Law Blog has listed my Indiana Divorce and Family Law Blog as one of the best in the country. See Ballard's Best: The 11 Best Family Law Bloggers In the US.
VA Family Law Blog has a great post on why people need a Living Will. Even when you get past the specific Virginia issue that seems to prompt the article, I got to say the following reasons apply to Indiana. The only thing I would add is that not only is a Living Will needed but also a health care power of attorney as well as a durable power of attorney. (We call these things advanced directives.)
You might want to read all of Keeping government out of your death: Terri Schiavo is not the only reason you need a Living Will but here is one paragraph that caught my attention:
"Despite the enormous expense, live-televised drama and the emotional burden of the Schiavo case, plenty of folks still do not have Living Wills. A Living Will states what you want done in the event that you find yourself in a position like Schiavo. It takes the burden off your family. Some people say that they know their loved ones would do the right thing. They are confident there would be no family battle."All that is so true. I have been trying to educate my clients about the need for advanced directives for these very same reasons. I received nothing but silence. I do not quite understand the silence - I assume that no one really wants to be thinking about death or disability. The problem lies in a situation where a spouse is in a coma and action needs taken. Without a Power of Attorney, the costs for taking action grow geometrically. Maybe I just did not put all this as well as did the VA Family Law Blog:
Would you want to be deprived of food or water if you were in a persistent vegetative state? What about heroic measures, like resuscitation or a permanent electronic breathing apparatus — would you want those things used on you? What if you were terribly ill, like with end stage cancer or advanced Alzheimer’s disease? Talk to your loved ones about it. Then get a Living Will. Whether you want all efforts made, none or something in between, get this inexpensive legal document drawn up to make what YOU want clear for your family and the medical professionals who want to help you. It is the best way to prevent politicians and other officious intermeddlers from making you their political hay.
If you are new here, you can find where I have posted on other non-lawyer business blogs. Just look click on these links: business blogs, online resources, and/or General business information.
I decided this month to just make a monthly review of business related blogs that might not be also law related. My biases may show - I do tend to tilt towards the marketing blogs and towards any business related blog that is well written. Here goes this month's selections:
Branding & Marketing
Victor Medina's Small Business and Solo Law Practice Blog
Small Fuel Marketing
Dane Carlson's Business Opportunities Blog
FC Now - The Fast Company Blog
BizzBangBuzz - Which is much more and much more impressive than its description: "Law blog focused on small business, technology start ups, entrepreneurs and emerging growth companies"
Duct Tape Marketing Blog - marketing for the small business
From the Kelley School of Business at Indiana University comes Entrepreneur Resources:
How to Start a Company The Johnson Center for Entrepreneurship & Innovation is dedicated to supporting entrepreneurial interests, and to providing information and resources to realize this goal. The online resources listed below are available to those wishing to start up new ventures.
"A business plan has three primary functions: * To determine the viability of a business * As an instrument for management * To raise capital"
Fashion apparel has not been a major issue in my practice but I got to say I like Fashion Legal Issues from the Sheppard Mullin Law Firm and Faking It: What Designers Should Know About Piracy, Purse Parties, and Parking Lots touches on an interest of mine - copyright law.
"Piracy is not just a problem on the high seas or the internet: fashion designers have fallen victim, too. Current copyright laws protect only the artwork of a design, such as labels, logos, prints and embroidery. Leave off the label or change the logo slightly, and manufacturers and copy-cat designers have free reign to duplicate the cut, shape, style, and silhouette of an item of clothing or an accessory. This widespread practice of design piracy by popular retailers is legal…for now."
From Franchising World October 2007 comes Partnering franchisees with the right vendor is a winning proposition for everyone by Danny Goldberg.
"Some franchise companies tend to overlook the details that are required to build an effective staff for their franchisees. Their primary focus is on opening the store and helping to sell products or services. Consequently, the employee headaches some new franchisees face may be hidden from view. Is the franchisee complying with labor regulations? Are illegal aliens being hired? What’s happening with the employee payroll?"In this case, offering pre-screened vendors that remove some of the responsibilities and burdens associated with payroll, human resources and benefits can help franchisees to focus more on enlarging their businesses. This step will help to minimize the frustration these new owners feel when they become overwhelmed by new responsibilities and ensure that the brand’s logo doesn’t disappear from their neighborhood.
As an added benefit to the corporate office, this step also provides a business model that’s easier to implement and manage since nearly all of the franchisees are using the same vendors.
***
How to Choose the Right Vendor
There are many factors that come into play when choosing the right vendors. Ask questions that will indicate how the relationship with them will be affected by how they conduct business.
From Corporate Crime Reporter comes Feds Join False Claims Act Lawsuit Against Lockheed Martin.
"Federal officials have joined two whistleblowers in alleging that Lockheed Martin Corporation and a group of vendors overcharged the federal government."
***The whistleblower complaint, which preceded Loftis' plea and which the Justice Department has now joined, alleged that Loftis through TMI, a company that sold perishable tools that Lockheed used in manufacturing, caused false claims to be submitted by Lockheed to the Department of Defense from January 1998 to February 2006.
Lockheed is also alleged to be independently liable for TMI's violation of the FCA due to its reckless oversight of TMI.
The lawsuit alleges that Loehr – the beneficial owner of TMI – recklessly failed to carry out her responsibilities as an officer and director of TMI.
While checking out My BizBroker yesterday and think I found some very good advice for anyone starting a small business in Ready or Not. I am fully aware how often my goals remain outside of my grasp - the constant struggle to get work done, get new work in distract from the broader goals of my practice. I am sure that happens in other small businesses. Still, this kind of advice needs to be kept in mind:
"I’m always looking out for what the gurus call Best Practices. Basically, Best Practices are the most used or adopted ways of performing a job that works out the best for all parties. What would Worst Practice be? That could be summed up as simply not caring about customers or just doing business only for the benefit of your self. So, with that in mind, I’m recommending that from now on all small business startups utilize this Best Practice idea: When you are planning for your business, you should always start with the end in mind. By implementing this into your business, your company will be able to operate with or without you. With this idea in place, you will be able to sell your business when you are ready. As simple as it sounds, most don’t do this and the results can be bad; real bad when you can’t choose your time to sell…"
This blog concerns itself (mostly ) with Indiana law and my practice does not include foreclosures (well, not much since I left behind consumer bankruptcy), but I get curious when I run across articles on two different blogs about Ohio and its foreclosures.
Bank Lawyer's Blog (which appears to be a very interesting blog on its subject) published Tale of Two Judges, and what was to me a very interesting and long paragraph:
There's been much back-and-forth over the past few days on various discussion boards about these decisions, especially Judge Boyko's. Some assert that this is evidence of massive documentation deficiencies in the mortgage backed securitization arena. As one commentator alleged in the linked New York Times article, notes may have been "assigned" to more than one loan pool, with no actual written "assignment" ever prepared. Other consumer representatives claim that they've seen instances of what appear to be the mass production of fraudulent assignments, with one claiming that "[w"]e have one woman, with VERY unique name, acting as Notary, officer, and various other positions in six different states for over 20 different companies. Also, dozens of different 'gestations' of her 'mark' which is a simple initial to her first name." That consumer advocate vows that they will wage a scorched earth policy that challenges every bit of evidence of assignment presented, and that "EVERYTHING a lender and their counsel will now do will be questioned in our answers and NOTHING will be accepted as fact until proven up via hard evidence since so many complaints, pleadings, affidavits, and accountings are boilerplate and produced by OTHERS, not the actual LENDER or their servicer, sub servicer or special servicer!"
Some more news from the federal Department of Labor:
On November 15, 2007, the U.S. Department of Labor’s (DOL) Occupational Safety and Health Administration (OSHA) published a final rule on employer-paid personal protective equipment (PPE). Under the final rule, all PPE, with few exceptions, is to be provided at no cost to the employee. The rule contains a few exceptions for ordinary safety-toed footwear, ordinary prescription safety eyewear, logging boots, and ordinary clothing and weather-related gear. For more information, visit PPE Payment Fact Sheet.
A bit off topic but who is keeping score? Not the sort of thing that happens every day outside of Indianapolis and so worth giving it some PR.
Court of Appeals Holds 200th Traveling Oral Argument at Taylor University:
"The Indiana Court of Appeals will hear its 200th traveling oral argument on Thursday, December 6th at Taylor University in Upland. The oral argument is scheduled for 12:30 p.m. at Rediger Auditorium. A panel of Chief Judge John G. Baker, Judge James S. Kirsch, and Judge Paul D. Mathias will hear the case on appeal from Wayne Circuit Court.
In Willie Eaton v. State of Indiana, the Court is asked to decide whether the State provided the facts necessary to enable the trial court to find probable cause to issue a search warrant for Mr. Eaton’s residence. Arguing for the appellant, Mr. Eaton, will be David Jordan of Lafuze, Jordan & Cox in Richmond; Deputy Attorney General Scott Barnhart will argue for the State of Indiana."
Indiana law provides a special remedy for victims of some crimes. This remedy is the Offenses Against Property statute. One can find the statute at IC 34-24-3. This article is a bit of a follow up to my post Trademarks: Hershey Sues in Indiana Over Parody.
As I wrote in that article, I find it difficult to explain what attraction the Crime Victim's Statute has for that case.
As for my list, I complied this for an article I never quite finished on this statute. Which means the chart might have a bit more interest to lawyers than to laypeople. The first column lists the crimes which can be used for a civil suit. The remaining columns show the kind of mental state is required to prove a case. Yes, one must show the defendant acted with criminal intent required under the criminal statute.
As anyone can see, the crimes listed are not ones to truly attract a lot of civil l
litigation. Some do not even have a very wide application in Indiana (like unlawful acts relating to caves) and others probably lack the prime requirement for a civil suit: a defendant with money.
My experience with the statute begins and ends with check deception, conversion and criminal mischief. The criminal mischief case involved a defendant splattering a very red paint throughout a very white kitchen. While another statute exists for check deception, this statute has fewer procedural requirements.
With conversion cases, this statute allows for attorney fees where common law conversion does not. The attorney fee provision also lead to the use of the statute with the criminal mischief case. Note that the statute requires payment of reasonable attorney fees. However, the judge or jury decides what is reasonable. In my case, the judge cut off about a thousand dollars of fees without any explanation. I put it down to the vagaries of the judicial mind.
I think that we might see use of this statute as part of a qui tam action (welfare and Medicaid fraud), computer trespass and home improvement fraud. Remember, I already mentioned the need for a defendant with money and I presume any use of this statute requires a fund for a damages award. (For those wondering why I emphasize a defendant with money , a suit for damages means a suit for money). I think anyone will see that the statute's protections are far more limited than one might suppose from its title.
I am sure that I have not provided anyone with a clue about why Hershey chose Indiana and this statute.
Thanks to a bit of bad health, I was not able to write on this until today. Probably my delay turned out well as this case is getting some attention.
First, the following from the Indianapolis Star caught my eye:
Parody leads to Hershey suit in Indy
"Hershey, the largest candy maker in the U.S., has filed suit in Indianapolis, charging a Pennsylvania apparel-maker with infringing on its trademark."Bloomberg News reports today that the suit against X-it! Activewear Inc. accuses the company of selling counterfeit products and, under Indiana's Crime Victims Act, Hershey is seeking triple damages.Hershey claimed X-it! made a derogatory parody of Hershey's famous slogan for its Almond Joy candy bar: "Sometimes you feel like a nut! Sometimes you don't!" Hershey was issued a registered trademark for those words in 1990.
Except that I just do not see how the Crime Victom's Statute (commonly called here the Treble Damages Statute) applies to this kind of case. Take a look at IC 34-24-3-1 and then track down the criminal statutes that serve as the predicate for that statute. I hope that answers the question asked by Your Name Is My Business in the article Pennsylvania Companies Drop Gloves In Indiana (by the way, why is it so hard to post comments on a WordPress blog?). Without something special about Indiana law (which I cannot see), the following comment from Your Name Is My Business makes an even stronger impact:Crime Victims Act — trademark infringement?
I don’t find the concept entirely offensive. Some kinds of counterfeiting, such as raw knockoffs and counterfeits, really are crimes, and should be treated as crimes. Using victim statutes this way could be a fair balance to the tendency of law enforcement to ignore this stuff.
Hershey is located in, well… Hershey, PA. X’It Activewear is located in Allentown, PA (about an hour and a half apart, if that). The venue seems rather vindictive, doesn’t it?
For all small businesses, a new publication from the federal Department of Labor needs checked out:
"DOL’s Wage and Hour Division (WHD) has released a new publication, Labor Standards Information for New and Small Businesses. It is a resource to assist new and small businesses to properly and effectively stay in compliance with the laws and regulations administered by the WHD. The Guide provides general information about the laws administered by the Division, the Department of Labor, and other federal agencies."The publication is in PDf format and can be found by clicking here. Remember these publications are not the law but are for informational purposes only.
Most home buyers do not understand how important the title company is to their purchase. The State of Indiana closing King's Title shows their importance if from an angle no one really wants to see.
From Richmond's Palladium-Item:
Officials accuse manager after money missing from King's
Richmond title and abstract office affected after Shelbyville official's license suspended
SHELBYVILLE, Ind. (AP) -- A title company that has a Richmond office has halted much of its work at nine statewide sites after its license was suspended over the disappearance of more than $900,000 from an escrow account.
State officials have accused the Shelbyville office manager of King's Title & Abstract Co. of taking the money. Also, the company's insurer has canceled its policy over the missing funds.
New Castle-based King's is one of the state's largest title companies, with offices also in Fort Wayne, Marion, Anderson, Richmond, Franklin, Rushville and Winchester.
"The disappearance of more than $900,000 in homebuyers' money has led the state to suspend the insurance license of manager John K. Branam and order King's to stop writing new business at its nine offices in Indiana."
How do you find what you want online? More specifically, how do you find information useful for your business.
Here are some ideas:
Alcohol and Tobacco Tax and Trade Bureau has new regulations on viticultural areas for comment. The proposed regulations can be found by clicking here. The notice states the following for why these areas are now under review:
Remember that these regulations apply to Indiana as well as California.For a number of reasons, TTB and Treasury believe that a
comprehensive review of the AVA program is warranted in order to
maintain the integrity of the program. First, we are concerned that
because the establishment of an AVA can limit the use of existing brand
names, approval of an AVA can have a deleterious effect on established
businesses, can limit competition, and can be used by petitioners to
adversely affect a competitor's business. We note in this regard that
where a conflict exists between a proposed AVA name and an established
brand name used on a wine label approved by TTB, a choice must be made
between competing commercial interests; we do not believe that, in the
context of the labeling provisions of the FAA Act, it is an appropriate
governmental role to make choices that undermine the commercial
interests of particular entities, if such choices can be avoided.
In addition, we note that over the years there has been an increase
in the number of petitions for the establishment of new AVAs within
already existing AVAs. Because the idea behind the recognition of an
AVA is that it is a unique area for viticultural purposes with
reference to what is outside it, we believe that preserving the
integrity of the AVA program mandates clarifying the standards for AVAs
to foster greater scrutiny on the establishment of new AVAs within
existing AVAs.
Finally, there is a need to explain and clarify the AVA petition
submission and review process and to clearly state the existing
authority to deny, and the grounds for denying, an AVA rulemaking
petition.
Having a week of dealing with gastritis is probably not the best way to lead into a Thanksgiving Dinner. Which I hope explains the silence here for the past few days. Still, we can all think of things we can be thankful for today. Mine right now consists of the consolation that I will be eating very little later today.
Thanks to Inter Alia for the lead to this article: Understanding Mortgage Foreclosure:
Recent Events, the Process, and Costs. (PDF format)
The article contains a question I have never heard of before - would a federal foreclosure law be a good thing?
Finally, even if a federal foreclosure law were structured to represent a compromise, the impact on costs would be ambiguous. A process designed to take longer than a few months, but completed in less than two years, may result in costs increasing for lenders in states where the process moves rather quickly and declining for lenders in states where the process moves slowly. The net effect on a national cost estimate, therefore, is indeterminate. Under a federal foreclosure law, however, it may become easier to obtain a much more reliable national estimate of the actual foreclosure costs, since lenders would follow similar foreclosure procedures nationwide.
From PC Magazine comes the report of a site that looks legitimate but is anything but: Discount Electronics Site Called a Scam.
Some good advice for any online transactions:
However, money orders are inherently less secure than other forms of payment, such as a credit card. The Federal Trade Commission's online shopping page recommends that consumers avoid using wire transfers when making online purchases.
"Wire transfers can be useful when you want to send funds to someone you know or trust—but they are not appropriate when you are doing business with a stranger," the FTC site says. "Why? If you wire money to buy an item from an Internet auction site—either through a money transmitter or directly to someone's bank account—and something goes wrong, it is very likely that you will lose your payment and have no recourse."
a town of approximately 1,000 people. "I talked to one woman, who said she knew everybody," Garstecki said. "She said she'd never heard of anything like that."
I discovered Business Week has a series of articles on starting up a business.
Room To Grow discusses the different options for a business structure. I cannot describe better the reasons against a sole proprietorship or partnership:
But if you have little chance of being sued because you don't have employees, you have little contact with the public, or your business doesn't need to take on debt, a simple structure may be all that you need.I would add - if you have no chance of being sued period, then go the simple structure. Since my job in helping a start up is to anticipate problems, I anticipate everyone getting sued.
Those benefits do come with more rules. S corps must have a board of directors and annual meetings, and require owners to establish salaries for themselves. And the IRS has stepped up audits of S corps to ensure that owners are not trying to sidestep employment taxes by paying themselves too low a wage. "Set a reasonable salary," says Chris O'Keeffe, a certified public accountant in Richmond, Va. "I cannot stress that enough." An S corp's profits and losses must be allocated in proportion to each shareholder's capital contribution, making it tough to award profits to shareholders who have brought in a lot of business or otherwise been valuable, notes Conrad Davis, a CPA and partner at Ueltzen & Co. in Sacramento, Calif. And some jurisdictions, including six states, don't recognize S corporations for tax purposes, treating them like regular C corporations, taxing them at both the corporate and shareholder level.
So reports the Muncie Star-Press: Foreclosures in Delaware County appear to be decreasing.
RealtyTrac reported Wednesday that 120 Delaware County properties were in some stage of the foreclosure process, compared to 446 in June.
Foreclosure numbers were also down in Madison County -- 715 compared to 2,245 in June -- and in Grant County -- 175 compared to 273 in June.
Not every indicator of local foreclosure activity was showing improvement. The Delaware County sheriff's department, which oversees sales of foreclosed properties, has not seen a decrease.
"It hasn't slacked off at all," said Lisa Scroggins, the sheriff's department office manager who oversees foreclosure sales.
Scroggins noted that the sheriff's office has scheduled 702 sales this year, a small increase over the 698 scheduled last year.
But Scroggins noted that sales of another 82 properties are waiting to be set in 2008.
I cannot recall how I ran across Boston College Law Intellectual Property & Technology Forum & Journal - Home but this will go on the links. A site providing more for lawyers than for businesspeople but worth a look if you got the interest in intellectual property:
"The Intellectual Property & Technology Forum & Journal at Boston College Law School (the 'Forum') is a legal publication dedicated to providing readers with rigorous, innovative scholarship, timely reporting, and ongoing discussion from the legal community concerning technology law and intellectual property. The Forum is designed, edited and published by students at Boston College Law School."
New site for me anyway. The U.S. Patent and Trademark Office has as part of its Stopfakes.gov website, Small Business and Intellectual Property :
"The USPTO has created this Web site to help small businesses consider the benefits of strong IP protection - both in the United States and overseas - and decide whether it is right for them."I have been trying to use this blog for emphasizing the importance of intellectual property and its protection. Click the link below that reads "intellectual property" to see my earlier articles. You should also check on the links to the right for "trade secrets" and "trademarks" for related articles.
Immigration law rarely touches my practice. Outisde of worrying if my clients filed their I-9 forms, I would say immigration law does not touch my practice. I feel certain this will change in the next ten years. Meanwhile, others do deal with this subject on a regular basis. So I suggest taking a look at Immigration-Law-Answers-Blog.
Franchisors will find more of interest Surveying franchise success from QSR Web.
"In an effort to maximize the number of successful partnerships they enter, franchisors have turned to a variety of profiling tools that purport to predict a successful match."Some points for and against using profiling techniques in finding prospective franchisees. Using the term profiling may raise some hackles but the worst thing that a franchise system can do is bring in a franchisee who does not really fit. The franchise's long term health ought to come first with franchisors. Sometimes it does not because the franchisor's long term goal may be to build a cash cow and unload. In other instances, the franchisor just gets in too much of a hurry to notice franchisee deficits.
Do you think your employer is violating the federal Occupational Safety and Health Act regulations.?
Then take a look at the Office of the Whistleblower Protection Program (OWPP):
"To help ensure that employees are, in fact, free to participate in safety and health activities, Section 11(c) of the Act prohibits any person from discharging or in any manner discriminating against any employee because the employee has exercised rights under the Act."
The IndyBlog noted my article on Non-competition agreements in the medical field with its post Non-compete Agreements - The Medical Field.
The IndyBlog is a new blog for me. It digests the news from Indianapolis and the central Indiana area.
The information can be found here:
USCIS Revises Employment Eligibility Verification Form I-9 (42KB PDF)Also. for those not already aware the USCIS has its employer's handbook online:
11/07/2007
From today's The Herald Bulletin: - Business plan seminar to be held Monday at APL.
"For those intimidated by the need to write a business plan, the local SCORE chapter will present a quick, logical and simple preparation sequence for business planning. The presenter will be Bill Christman, a SCORE volunteer."
Do you have your business' future planned? Sell out? Leave it to family members?
Here is an article from the Canadian Financial Post with some ideas. Passing the keys to key staff.
The point is to have a plan.
Please contact me if you have an Indiana business and want to set up a succession plan for your business.
Indiana INdiana Business published this article a while back but I still think I can suggest An Overview of Alternatives to Bankruptcy.
Other articles here discuss bankruptcy alternatives. Click on the link below next to the word label.
If you think you need to discuss bankruptcy alternatives for your Indiana business, then feel free to contact me.
This time comes MINDING YOUR BUSINESS: Is a franchise in your future? from the The MetroWest Daily News of Framingham, MA:
"An individual who decides to open a business has, in essence, three options: establish a new business, buy an existing business or purchase a local franchise with a regional or national brand. The third option is one that is appealing to many people, even those who have never considered going into business."
***It is important to remember, however, that the same fundamental rules that apply to starting a business are also in play when one purchases a franchise. Contrary to popular belief, being a franchisee can be just as hard as opening any other business. It can also be just as successful and, in some cases, more successful.
There are similarities between franchisees and independent owners - and there are differences. If you are considering becoming a franchisee, here are a few important things to keep in mind.
First, there is one essential ingredient to being a successful franchisee, the same one required of independent business people: passion. Before settling on a franchise, really give some thought to your passions in life. If a good meal is not important to you, you should not open a restaurant franchise. If you have always been religious about working out, maybe a gym franchise is the way to go. In business, passion brings success, and that rule applies equally to franchisees and independent businesspeople.
Second, do your due diligence. If you were to open an independent business, you would do your homework. You would look at the products or services you plan to offer, the revenue stream, the expenses, the location, and a multitude of other things. Just because a national brand offers you a glossy book with lots of facts and figures and success rates, don't take it at face value. Do the exact same due diligence you would do as if you were opening an independent business.
I found the following article on "Teklaw" blog from Indiana's Tim Kalamaros. He is a South Bend lawyer.
Here's an excellent living trust "fraud alert" by Indiana lawyer Jim Voelz, of Columbus Indiana, reprinted with his permission:
***
"Don't purchase a living trust without getting advice from a competent and independent attorney. If you have a living trust that has been purchased as a result of a seminar or solicitation you should have it reviewed by a competent attorney. If it was sold to you through false and deceptive representations you may have a remedy under the Indiana Deceptive Consumers Sales Act."
Rico Law Blog reports on an interesting RIAA, Taking on the record industry.
Since 2003 the Recording Industry Association of America (RIAA) has filed almost 15,000 lawsuits charging computer users with trading music online. Now one of its targets is suing back. Tanya Andersen, a 42-year-old disabled single mother, has filed a countersuit in Oregon alleging that the industry's practices violate, among other laws, the state's Racketeer Influenced and Corrupt Organizations Act.
Reading Ecommercetimes.com's article E-Mail Disclaimers: Scant Protection at Best might of some benefit to those doing business via e-mail.
"Considering putting an e-mail disclaimer at the end of the e-mail that says, in effect, 'Hey, don't read this!' is every bit as effective as a park flasher telling you not to look -- how much protection does that overly verbose threat actually carry?"
Do you want to start an Indiana corporation? What follows is a very general outline of what it takes to incorporate in Indiana.
1. Check the availability of the corporate name with the Secretary of State, Division of Corporations.
The next step in the process is to continue your registration. When completed you will checkout and submit the registration with payment. The Indiana Secretary of State will review the registration and notify you via email if it has been approved or rejected.
Incomplete: You must finish filling out your form with the required information before SOS can approve your registration3. Getting the Articles of Incorporation to the Secretary of State, Division of Corporations. Make sure that the registration fee is enclosed.
Pending Review: You have completed your registration and have successfully submitted it to the Indiana Secretary of State for review. The Indiana Secretary of State will contact you via email to let you know your registration has been approved or rejected.
Rejected: Your business entity registration was not approved by the Indiana Secretary of State. A reason (s) should be listed in your email as to why it was not approved. You may contact SOS at 317.232.6576 to determine why your registration was not approved.
This application is available during the following hours:During this application you can also produce the documents needed for electing Subschapter S status. Remember that Subchapter S is a creature of the federal tax law - Indiana recognizes only two types of corporations: for-profit and not-for-profit.
Monday - Friday 6:00 a.m. to 12:30 a.m. Eastern time
Saturday 6:00 a.m. to 9:00 p.m. Eastern time
Sunday 7:00 p.m. to 12:00 a.m. Eastern time
I think this article from the Scottish Sunday Herald, It looks like Scotch ... but don't be fooled, provides a justification for our American regulation of alcoholic beverages:
"BOGUS SCOTCH whisky from China is the subject of the majority of as many as 70 legal actions being pursued by the Scotch Whisky Association (SWA) in its global battle to protect the integrity of an industry worth £2.47 billion in exports last year."
***
The discovery and prosecution of bogus whisky generally follows a pattern. Sales representatives for the major whisky companies, scouring shelves all over the world, provide tip-offs about offending products. These are then dispatched to Scotland where the content is analysed. Armed with chemical proof, the lawyers then go to work.
***Barclay's legal team has a formidable arsenal of existing law at its disposal, including Scotland's own definition of what exactly constitutes Scotch whisky, as well as supporting EU legislation on spirits law and the "geographical indication" rules enshrined in the principles of the World Trade Organisation.
The team's hand will be strengthened still further in early 2008 when, after a four-year campaign led by the industry, the British government passes an all-embracing law tightly defining labelling, geographical provenance and the producing distillery.
Then take a look at Do You Really Need a Living Trust? (Part 1 of 2) and Do You Really Need a Living Trust? (Part 2 of 2) from The Connecticut Probate Blog. (And thanks to the Pennsylvania Estate Planning Blog for leading me to these posts). The living trust craze died down a few years ago but that just means we now can recognize a living trust as a mere tool and not a miracle.
There some minor differences between Indiana and Connecticut but not enough to invalidate the broader points in the posts. I really like the emphasis on needing assets. Some clients think that a living trust needs no assets!
These kind of lists cannot be repeated enough. From the Miami Herald: 10 things investors should know about buying a franchise
"The International Franchise Association says that investing in a franchise is a major undertaking -- one that involves not only money but possible lifestyle changes. Want to avoid the sleepless nights? Here are key items you need to consider before you buy a franchised business."
Thanks to California Creditor's Rights & Business Bankruptcy Lawyer & Attorney for the article A Fly In The Ointment: Sale Of Property May Cut Off Landlord's Section 502(b)(6) Lease Rejection Claim For Future Rent. I have not seen anything about this issue in Indiana and so this was an interesting point.
I think I will need to follow this up with a comparison between the Virginia law applied and our Indiana law.
The Utah Business, Real Estate & Estate Planning blog has a post that does a very good job explaining how to use these tools. See SHOULD YOU HAVE A WILL OR TRUST?.
I do not generally recommend a trust without having the assets for funding one.
I treat Wills differently because of two reasons. First, without anything to fund, the amount of assets do not matter. Second, I have two many clients without assets but with minor children and a Will can establish a guardianship (something a trust cannot do).
If you are an Indiana resident needing an attorney for a Will or trust, feel free to contact me.
Let's talk about contracts for a minute or more.
You spent time, energy, and money in negotiating the terms of the contract. Why? To make money, of course. The contract speaks of what each party is to do and what they get for doing these things.
The contract also sets out what will happen if there is a breakdown. The law calls that breakdown a breach of contract.
Perhaps lawyers expend too much energy worrying about breaches of contract but the fundamental idea behind a contract is to make the thing work. A breach means the thing did not work as planned. Besides litigation costs more money than the time spent in negotiating the contract.
Bankruptcy remains an important if somewhat diminished force for American businesses. I missed The Terrible Twos? A Look At BAPCPA's Impact On Business Bankruptcy Cases At Its Second Anniversary until yesterday. The articles reviews the last two years under the new Bankruptcy Code.
Preferences interest me. They should interest more businesspeople. What are preferences? A preference refers to money paid by a debtor to a creditor within a certain time period prior to the bankruptcy and which the bankruptcy trustee can get the creditor to give back to the bankruptcy estate. A bit less precisely: the business gives up money for which it gave money or services or goods for the debtor's money. Sort of like adding insult to injury."Tomorrow, October 17, 2007, marks the second anniversary of the effective date of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, known as BAPCPA. BAPCPA was enacted primarily to make sweeping changes to the consumer provisions of the Bankruptcy Code. However, BAPCPA also made significant revisions in the business bankruptcy arena. When it was passed, bankruptcy lawyers, creditors, and potential debtors had many questions about how these changes would play out as new cases made their way through the system. Two years out, we now have answers to some of those questions."
I retain my belief that bankruptcy preferences are one area where businesses could prevent loss by working with their lawyers but consistently fail to protect themselves. Working with counsel, the business should have no problem setting up procedures for dealing with debtor clients. My experience tells me that preference actions only succeed if the creditor prepared the ground long before the debtor filed bankruptcy.Preferences. Before it took effect, one of BAPCPA's most talked about changes was a revision to the "ordinary course of business" defense to preference claims. BAPCPA dropped the requirement that a preference defendant establish that a transfer was both (i) made in the ordinary course of business or financial affairs between the debtor and the defendant and (ii) made according to ordinary business terms.
- BAPCPA's main change was to replace the "and" with an "or", meaning that a preference defendant now has to establish only one of the two prongs (instead of both) to prevail on the defense. When it was enacted, many bankruptcy lawyers believed this change would favor preference defendants.
- In something of a surprise, however, the first case interpreting the revised statute applied a brand new standard to the "ordinary business terms" provision. Unlike the prior analysis of that prong, the new standard examined the question from the perspective of both the creditor (as had been done pre-BAPCPA) and the debtor (the new BAPCPA twist). As a result, in that decision the preference defendant lost. For more on the decision, in the In re National Gas Distributors, LLC case, check out this post on David Rosendorf's BAPCPA Blog.
- There have been surprisingly few cases interpreting this section, so it remains to be seen whether other courts will follow the National Gas Distributors interpretation.
Intuit offers entrepreneurs chance at prize:
"Intuit Inc., the maker of Quicken and TurboTax software, is offering aspiring entrepreneurs a chance to compete for a business start-up grant valued at $50,000 in cash, products and services."Thanks to Solo in Chicago for the link to this Chicago Tribune article.
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Entries must be submitted by Dec. 15.
I agree wholeheartedly with this statement from The Small Business Blog:
"Choosing an accountant/CPA is probably one of the most important decisions to get right, because you are unlikely to have an accountant’s grasp of * taxation * company law * dealing with the tax authorities * wide range of knowledge about small business. You need to make sure you find an accountant/CPA who concentrates on small business and start-up business, like SOHO-, SME, SMB-, Micro-, Lifestyle-, Home-, DIY-, Hobby-, Boomer- or Personal business, like professional, contractors, freelancer, self-employed, sole-trader and virtual assistants before you make any appointments."
The post is titled Q & A: What questions should I ask my accountant before I start my business?. I like what see I about this Small Business Blog. I suggest that if you are starting a new business that you give it a look. No, it is not another lawyer blog.
I advise everyone starting a new business to get an accountant and a lawyer (I bet everyone saw that last one coming). Between legal issues and tax issues, a new business can easily lose its way. Get a CPA and an attorney on board at the beginning to help keep the business going.
If you looking to start a business in Indiana or have a new Indiana business, feel free to contact me about my services.
Lawyers dislike partnerships because they do not protect the partners' assets from business creditors. Corporations limit the liability of their shareholders to their interest in the corporation. The liability limited in a limited liability company is the members' assets to those invested in the LLC.
What lawyers like, clients often ignore. Partnership law allows for creating a partnership without an agreement, instead the mere actions of the people creates the partnership. Indiana Code 23-4-1-7(4) says:
The receipt by a person of a share of the profits of a business is prima facie evidence that the person is a partner in the business, but no such inference shall be drawn if such profits were received in payment for the following:Other problems include:(a) As a debt by installments or otherwise.
(b) As wages of an employee or rent to a landlord.
(c) As an annuity to a widow or representative of a deceased partner.
(d) As interest on a loan though the amount of payment varies with the profits of the business.
(e) As the consideration for the sale of a goodwill of a business or other property by installments or otherwise
I am not a patent attorney. Before becoming a patent attorney, the person must be an engineer. However, patents and trademarks can overlap the subject of their protection. I suggest reading Erik J. Heels' Patents vs. Trade Secrets for anyone interested in reading up on this overlap. It isa few years old but I notice nothing out of date when I re-read the article last night.
What do I when a client has a patent issue? Anderson has a patent attorney that I will work with.
X contracts with Y but before completing the contract Y starts doing business with Z. Can X do anything about this?
Under Indiana law, X may have a lawsuit for tortious interference with contract. Indiana law has five things that must be proven for a tortious interference with contract claim.
(1) the existence of a valid and enforceable contract;I assume for this post that X has a valid and enforceable contract, and I assume that Z knew of the contract between X and Y, and also assumed is X can show the financial harm satisfying the fifth requirement.
(2) defendant's knowledge of the existence of the contract;
(3) defendant's intentional inducement of breach of the contract;
(4) the absence of justification; and
(5) resulting damages.
